The International Criminal Court (ICC) has laid the foundations for an investigation into alleged war crimes in Palestine, following a ruling of the Pre-Trial Chamber on 5 February. By a 2-1 majority, the Court found that areas of the West Bank, the Gaza Strip, and East Jerusalem – territories captured by Israel in the 1967 Arab-Israeli war - fall within its jurisdiction. As Chief Prosecutor Fatou Bensouda nears the end of her nine-year term, responsibility for progressing the investigation will lie with British lawyer Karim Khan QC.

THE COURT’S DECISION

The ruling on jurisdiction was made pursuant to a request by Bensouda to establish whether the Court’s mandate extends to the “Situation in Palestine”. In a statement published in December 2019, the Gambian lawyer declared that she was “satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”.  The request came after five years of preliminary examination which identified evidence to support claims of war crimes committed by Israel, and the Palestinian armed group Hamas.

The decision means that the ICC is now free to open an investigation into war crimes reported to have been committed in Palestine, most notably during the 2014 war on Gaza in which 2,251 Palestinians were killed, 1,462 of them civilians. A further 71 Israelis were also killed, 66 of whom were soldiers. According to the judges, any formal investigation is likely to prove “protracted and resource intensive”.

Despite being identified as a potential subject for investigation, Hamas has welcomed the ruling. In a statement, spokesperson Hazem Qasem declared the judgment an “important step” towards achieving “justice for the victims of the Zionist occupation”.

INTERNATIONAL RECEPTION

In 2012, the United Nations raised Palestine’s status from a “non-member observer entity” to a “non-member observer state”. Whilst of symbolic importance, the practical effect of resolution 67/19 was limited. It neither conferred upon Palestine international legitimacy nor the ability to vote at the UN General Assembly. It did however allow Palestine to join the ICC and petition the court to investigate Israeli war crimes.

Staunch opponents of resolution 67/19, namely the United States and Israel, are also critical of the ICC judgment. In a video response to the ruling, Israeli Prime Minister Benjamin Netanyahu said; “when the ICC investigates Israel for fake war crimes, this is pure anti-Semitism...We will fight this perversion of justice with all our might”. Attorney General, Avichai Mandelblit, stated that; “the ICC was formed to fight atrocities worldwide. The State of Israel does not commit atrocities”. In 2019, Mandelblit attempted to pre-emptively oust the Court’s jurisdiction, publishing a legal opinion to this effect the day of Bensouda’s initial request.

The US has also expressed “serious concerns” following the judgment, further questioning the legitimacy of Palestine’s membership to international bodies such as the ICC. A spokesperson for the State Department said, “we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC”. Concerns were echoed by several ICC member states including Germany, Austria, and Hungary.

Speaking to the Palestine News Agency (Wafa), Palestinian Prime Minister hailed the decision as “a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families”.

DECISIONS FOR THE NEW CHIEF PROSECUTOR

Outgoing Chief Prosecutor Bensouda, who in June will reach the end of her nine-year term, has been at the helm of the effort to launch an official investigation. Following a secret ballot, it was announced on 12 February that she will be succeeded by British lawyer Karim Khan QC.

Khan, who currently heads United Nations efforts to investigate war crimes committed by ISIS, will face the task of increasing both the Court’s successful prosecutions, and its global legitimacy. As well as staunch rejection from the US and Israel, the Court’s jurisdiction is met with growing distrust from African countries such as South Africa and Burundi, with states in the continent often at the forefront of the Court’s investigations.

In addition to any potential probe into alleged war crimes in Palestine, Khan will be responsible for progressing investigations into crimes committed by the US as part of its on-going military intervention in Afghanistan. The Hague-based Court’s relationship with the United States is historically hostile, though in recent years it has notably deteriorated. Despite initial US participation in negotiations leading up to the Rome Statute in 1998, successive administrations have remained steadfast in their rejection of ICC jurisdiction. As President, Bill Clinton signed the Rome Statute though never sought ratification in the Senate.

The Treaty was then effectively "unsigned" by President George W Bush, who further pressured states to enter into bilateral “impunity agreements”, requiring them to refrain from surrendering US nationals to the ICC. Bush also lobbied for a UN Security Council Resolution to exempt US personnel working as part of peacekeeping missions from the Court’s jurisdiction.

Any semblance of diplomatic subtlety was severed by the Trump administration, which placed Bensouda - along with other ICC officials - under sanctions. Announcing the sanctions, former US Secretary of State Mike Pompeo proffered no other rationale than that the Chief Prosecutor was “materially assisting” the Court’s efforts to “target Americans”. In an official statement, the ICC responded that “these attacks constitute an escalation and an unacceptable attempt to interfere with the rule of law and the Court's judicial proceedings”.

Any potential probes into Israeli and US war crimes – two states resolute in their non-recognition of the Court’s jurisdiction – are likely to be perceived as somewhat undermined without the involvement of the states under investigation. With pressure to bring more successful prosecutions to augment global legitimacy, it remains to be seen how far either investigation will progress. What is certain however is that all eyes will be on Khan.

Zoe recently graduated with an MA in Law from the University of Law, London. She has a strong interest in human rights and national security, having spent two years at a conflict resolution NGO in Brussels. She currently works as a paralegal at a London based firm where she assists with age dispute claims brought by unaccompanied minors.

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