The Prosecutor of the International Criminal Court’s (ICC) unannounced visit to Israel and Palestine earlier in December stirred controversy about the effectiveness of his role and the institution he represents. The visit, prompted by an invitation by Israel, was criticized by many Palestinians as biased in its conduct and objectives. Prosecutor Karim Khan visited sites of the October 7 attack in Israel, but notably omitted visits to Gaza, or Israeli settlements where documented settler violence has occurred—topics he referenced in his post-visit statement. Whether this visit was intended for investigative purposes, or simply to establish cooperation with Israeli and Palestinian authorities for future investigations, still remains unclear. Despite this lack of clarity, however, the urgency of the situation has compelled the prosecutor to make more frequent appearances in the media, emphasizing the Court’s commitment to investigating ongoing violations of international human rights and humanitarian law.
Controversy about the efficacy of international institutions has not solely been limited to the ICC. On December 9, the Security Council convened and failed, again, to pass a resolution urging an immediate humanitarian ceasefire in Gaza. However, on December 12, 153 countries voted in favor of a non-binding UN General Assembly resolution that called for a ceasefire, demonstrating significant international agreement for it in the face of the Security Council’s apathy. Incessant bombings and hostilities in Gaza by Israeli forces, and rising settler violence in the West Bank, have placed international institutions, including the ICC, under increasing scrutiny and criticism for their inability to act or respond in a timely manner. This inaction has increased action by both state and non-state actors, attempting to address the dire situation on the ground, and utilize all available tools for justice. The ICC, and Prosecutor Khan, must stay true to their ultimate objective of the achievement of justice for all victims of current humanitarian violations and war crimes, given the credibility of the Court, and the entire international legal system, is at stake like never before.
The context of the ICC investigation: A decade of humanitarian violations
A month earlier in November, grave concerns over a possible genocide materialized across the world. The Center for Constitutional Rights (CCR), a US-based legal advocacy organization, initiated a federal lawsuit on behalf of two Palestinian human rights organizations and eight plaintiffs. The lawsuit alleged the complicity of the US government in Israel’s “genocide of the Palestinian people” in Gaza is in violation of both US and international law.
At the international level, on November 16, UN experts raised the alarm that there was a “genocide in the making” in Gaza, given mounting evidence of genocidal intent and the failure of the international community to achieve a ceasefire. Shortly after, five states—South Africa, Bangladesh, Bolivia, Comoros, and Djibouti—made a group referral to the ICC to investigate allegations of war crimes and crimes against humanity, believed to have been committed in Palestine. This was supplemented by a lawsuit filed to the Court by three Palestinian rights groups (Al-Haq, Al Mezan, and the Palestinian Center for Human Rights), that requested the charges of “apartheid” and”genocide” be added to this investigation. Even earlier, in October, Reporters Without Borders (RSF) submitted a complaint to the Office of the Prosecutor to investigate war crimes against Palestinian journalists in Gaza amid the ongoing bombardment. This marked increase in referrals and implicating evidence coincided with an unprecedented number of deaths in Gaza, as nearly 20,000 Palestinians have so far been killed and 1.9 million displaced since October 7.
These referrals and complaints are connected to a broader investigation that was opened by the ICC on March 3, 2021. The investigation, which covers alleged crimes committed “in the occupied Palestinian territory… since June 13, 2014,” is ongoing; meaning its remit extends to crimes occurring today in those same territories. Its jurisdiction oversees Gaza, the West Bank, and East Jerusalem; the entities it defines as comprising the State of Palestine.
ICC procedures within the context of the current investigation
Within the current war on Gaza and violence in the West Bank, violations of international humanitarian law that have been filed include indiscriminate attacks against the civilian population, the bombing of hospitals, schools and UN aid workers in Gaza, the targeting of journalists, and other crimes that fall under the jurisdiction of the Court. All of these acts fall within the definition of war crimes and crimes against humanity outlined in the 2002 Rome Statute, the ICC’s founding charter.
Prosecutor Khan clarified he hired a team of investigators when he took office in June 2021 to collect, preserve, and analyze information in relation to relevant incidents within the context of the investigation. Significant evidence continues to be collected, including through submissions received via an official and secure Office of the Prosecutor Link.
After these referrals, the prosecutor opens a preliminary examination into the situation at hand, in order to determine whether a case is admissible and if it lies within the Court’s jurisdiction. The prosecutor also needs to determine whether the situation is of sufficient gravity that would warrant an investigation and hence will serve “the interests of justice.”
The prosecutor then proceeds with investigations by gathering sufficient evidence, and requests the Pre-Trial Chamber to issue an arrest warrant to appear once the relevant suspect(s) are identified. Recent examples include the arrest warrants issued for Russian President Vladimir Putin and Maria Lvova-Belova (Putin’s Commissioner for Children’s Rights) in the context of the Court’s investigation of the War in Ukraine. Once suspects appear before the Pre-Trial Chamber and charges are confirmed, the case can proceed to the trial stage, where the prosecutor must “prove beyond reasonable doubt the guilt of the accused.” The Trial Chamber issues a verdict, which may not only be limited to declaring the culpability of the suspect, but can also include reparations for victims. Initial verdicts are subject to appeal, and a final verdict would then be issued after the appeals stage, which—in the case of a guilty verdict—should be enforced by states who have agreed to do so.
Palestine’s history with the ICC
While the history between the ICC and Palestine has largely been defined by its near-decade long investigation, its relationship has been predicated on its recognition as a state by various international bodies. Indeed, the State of Palestine submitted three different requests to the ICC to invoke its jurisdiction over crimes taking place in its territory. The first such declaration was made in January 2009, but the preliminary examination concluded that the Court could not pursue it further, because Palestine was (at that time) not a state under international law. Three years later, the UN General Assembly voted overwhelmingly in favor of Palestine assuming non-Member Observer State status in the United Nations. This represented a critical development for Palestine to be able to join the ICC and invoke its jurisdiction over crimes committed on its territory.
The State of Palestine submitted three different requests to the ICC to invoke its jurisdiction over crimes taking place in its territory
Following this, Palestine made its second declaration on January 1, 2015, accepting the retroactive jurisdiction of the Court over crimes committed in the Occupied Territories since June 13, 2014. This was done right before Palestine acceded to the ICC at the height of the hostilities in the West Bank and Gaza at the time. The third referral was made in May 2018 after Palestine became a state party to the Rome Statute and formally submitted a referral to the prosecutor “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing, and future crimes within the Court’s jurisdiction, committed in all parts of the territory of the State of Palestine.” The key difference between these declarations and the current referral is that the latter would enable the prosecutor to decide to open an investigation without the need for an authorization by the Pre-Trial Chamber. State referrals, like the recent group referral regarding crimes in Palestine also usually proceed faster due to the existence of state cooperation.
The territorial jurisdiction of the ICC
The ICC’s territorial jurisdiction in this investigation extends to the territories occupied by Israel since 1967; namely, Gaza, the West Bank, and East Jerusalem. As such, Palestine was determined a state party “for the sole purposes of the Rome Statute,” which is separate from a determination of statehood under international law. The Court thus has territorial jurisdiction over the Occupied Palestinian Territories. The Court also has jurisdiction over crimes committed by nationals of state parties, which in this case, are the nationals of the State of Palestine, as it is a state party to the Rome Statute, unlike Israel who has signed the Statute but not ratified it yet.
The Court found that there was a reasonable basis to believe that war crimes, as defined under Article 8 of the Rome Statute, have been committed by both sides of the conflict in the territories; namely, members of both the Israel Defense Forces (IDF), and Hamas and Palestinian armed groups in Gaza. Their war crimes are believed to include the intentional and disproportionate use of violence against civilians, willful killing, and other grave crimes. It is therefore the position of the ICC to adjudicate and, where necessary, to assess the severity, extent, and culpability of these crimes.
Admissibility of the case
Given jurisdiction exists, it is subsequently the prosecutor’s function to judge whether the cases elucidated within this investigation are admissible or not. The ICC is described as a Court of last resort, meaning domestic investigations of crimes take precedence. Only when those states are either unable or unwilling to prosecute the crimes will the Court’s jurisdiction to litigate be activated, something known as the “complementarity principle.” The alleged crimes should also be of sufficient “gravity” that warrants an investigation by the Court.
When determining the admissibility of Palestine’s case in December 2019, the then-ICC Prosecutor Fatou Bensouda saw that the complementarity principle held with regards to the crimes allegedly committed by members of Hamas and Palestinian armed groups. This was due to the inability of the Palestinian state (as represented by the Palestinian Authority) to investigate crimes committed in Gaza. However, for crimes committed by members of the Israeli forces, the Office of the Prosecutor decided it would continue to assess “the scope and genuineness of relevant domestic proceedings,” and then subsequently determine if there was an inability or unwillingness to investigate a given crime by Israeli authorities. This means all conduct attributed to Palestinian groups may be investigated by the ICC, but not all conduct by the Israeli forces faces the same fate. It would be up to the prosecutor to determine whether Israel authorities have been unable or unwilling to investigate a particular crime and then proceed with an investigation if that were the case.
Following its conclusion, this preliminary examination sanctioned the start of an investigation of crimes within the geographical and temporal jurisdiction of the Court, as all the criteria of jurisdiction, admissibility, and gravity had been met. It took some time for the official decision to start the investigation in Palestine, as the prosecutor was waiting for a final determination of the status of the territories upon which the Court will have jurisdiction. The judges later affirmed in February 2021 that the Court had jurisdiction over the Occupied Palestinian Territories based on “the Palestinian people’s right to self-determination and the views of the international community as expressed by the United Nations General Assembly and other international bodies.”
Potential opportunities and looming challenges
Given the speed and intensity of events unfolding in Gaza and the West Bank, the ICC prosecutor needs to prioritize the Palestine investigation. Khan should direct investigative efforts and allocate sufficient resources for this purpose to maintain the credibility and impartiality of the Court. The work of the Court heavily relies on the cooperation of concerned individuals, state, and non-state parties for the successful implementation of this investigation. The cooperation of Israel, a non-state party to the ICC, is paramount for this investigation to make any kind of tangible progress, but the extent of such cooperation remains questionable given its past remarks stating it would not cooperate with the Court. Additionally, the US dismissed the Court’s role in this investigation multiple times, further straining the Court’s resources and support from the international community.
In the case of Palestine, a group referral by five states and tens of other complaints filed by non-state actors over the years also point to a heightened and concerted effort to utilize existing justice mechanisms
In the interest of justice, there needs to be a collective effort, voiced by the prosecutor, to “vindicate” the Geneva Conventions and principles of customary international law and to share relevant evidence with the Office of the Prosecutor. This concerted effort can be seen in the case of Ukraine, when a group of 39 member states referred the situation to the ICC for investigation, to which the Court responded promptly. In the case of Palestine, a group referral by five states and tens of other complaints filed by non-state actors over the years also point to a heightened and concerted effort to utilize existing justice mechanisms. The killing of Palestinian-American journalist Shireen Abu Akleh presents an example of the type of complaints filed to the ICC in the context of this investigation. According to the Committee to Protect Journalists, as of December 17, preliminary investigations highlighted that at least 64 journalists and media workers have been killed since the start of this war. This is only an example of the extreme spike in cases related to one category of war crime in this ongoing investigation.
As the international criminal system does not have an enforcement mechanism of its own, it relies on states to carry out such measures. This heavy reliance on states for the investigation and prosecution of crimes under the Rome Statute is part and parcel of the current international legal architecture and represents an inherent challenge to its success.
The prosecutor needs to stay true to his words and ensure that the ICC’s primary objective remains the achievement of justice for all victims of war atrocities and human rights violations. The credibility of the Court and the entire international legal system is at stake given the unprecedented scale of civilian suffering and the perceived politicization of the Court. The Court should take such concerns seriously and address them through a professional and impartial investigation in the ongoing situation in Palestine.
Nourhan Fahmy is an Egyptian researcher, who focuses on human rights law and international affairs policy research. She is a former Bassem Sabry Democracy Fellow at TIMEP.