International Criminal Court (ICC or “the Court”) chief prosecutor, Fatou Bensouda, announced the conclusion of the ICC’s preliminary examinations into alleged war crimes committed in the Occupied Palestinian Territories, finding a “reasonable basis” to investigate further.
The preliminary examinations into the Situation in Palestine opened in 2015. Bensouda’s announcement, delivered at the end of 2019, stated that she believes “war crimes have been or are being committed in the West Bank, including East Jerusalem and the Gaza Strip” and indicated that further investigation would serve the interests of justice.
The ICC announcement indicated that, in addition to pursuing war crimes allegedly committed by members of the Israel Defense Forces (IDF), the Court would also investigate potential crimes committed by members of armed Palestinian groups, including Hamas.
BACKGROUND: INTERNATIONAL CRIMINAL COURT
The ICC, established through the Rome Statute in 1998, cannot hear cases against states (like the International Court of Justice) but rather brings cases against individuals for a finite list of specific international crimes. Crimes subject to prosecution include war crimes, crimes against humanity, genocide, and the crime of aggression.
Upon receiving a referral, or on the Prosecutor’s own initiative, the ICC opens preliminary examinations into a “situation”.
During this time, the Prosecutor considers whether she believes there to be sufficient evidence of grave crimes, whether the requisite jurisdiction and complementarity with domestic courts exists, and whether an investigation would be in the interests of justice. At the conclusion of this preliminary stage, the Prosecutor may open an investigation.
Once the Prosecutor completes her investigation, she may request the Pre-Trial Chamber to issue a summons or arrest warrant. At that point, the case may then move into trial stages, with opportunities for appeal and sentencing.
ICC JURISDICTION OVER ISRAEL AND PALESTINE
While Bensouda now believes the ICC has jurisdiction over the issues between Israel and Palestine, she has nevertheless requested a specific jurisdictional ruling from the Court to officially determine whether the scope of the ICC’s territorial jurisdiction allows it to prosecute crimes in the West Bank, Gaza, and East Jerusalem.
In order to be subject to the jurisdiction of the International Criminal Court (ICC), the crimes committed must have occurred either in a state that has ratified the Rome Statute, or else were committed by a national of a state that has ratified the statute. Palestine acceded to the Rome Statute in January 2015.
Israel, which is not a member of the ICC, reacted swiftly to the decision, denouncing the Court’s decision to move past preliminary examinations. It argues that Palestine is not a sovereign state and therefore the ICC cannot have “criminal jurisdiction over its territory and nationals” nor can Palestine delegate authority to the ICC. Essentially, Israel purports that the hotly-contested issue of Palestinian statehood prevents it from seeking prosecution of any international crimes through the ICC.
PROGRESSION OF THE INVESTIGATION INTO WAR CRIMES
Pending the Court’s jurisdictional ruling, the next step will be official investigations, then followed by prosecution of identifiable individuals—probably members of the Israel Defense Forces, Hamas, or another armed group in the region, and assuming the Pre-Trial Chamber is comfortable issuing a summons.
The Court has not yet zeroed on which individuals may be implicated in the Hague, but it has identified “at least three” instances of war crimes committed during the 2014 Gaza war, including intentionally launching disproportionate attacks. As Palestine did not ratify the Rome Statute until 2015, it is unlikely that acts committed prior to this date will fall under the jurisdiction of the Court.
Additional war crimes that may be implicated include the transfer of an occupying power’s civilian population into the occupied territory (that is, transferring Israeli civilians into Occupied Palestinian Territories via settlements), the unjustified destruction and appropriation of property, and directing attacks against civilians.
The ICC has faced criticism that it appears to focus only on prosecuting crimes in African countries. Bensouda’s move to investigate crimes taking place in the Occupied Palestinian Territories could be seen as a way to restore legitimacy of the Court with other ICC member countries.
Ariana is a core team member and Managing Editor of Human Rights Pulse. She is an ardent human rights advocate and soon-to-be attorney with experience in immigration and refugee rights, anti-death penalty advocacy, and nuclear disarmament among other issues.