On the 5th of February 2021, Pre-Trial Chamber I of the International Criminal Court (ICC) ruled that the court has jurisdiction to investigate alleged war crimes committed in Palestine since June 13, 2014. While the Israeli government has forcefully condemned the ruling as “political,” Palestinians and several human rights groups have welcomed the decision as a step towards achieving justice.
THE ICC’S JURISDICTION OVER PALESTINE
Israel is not a State Party to the ICC and does not recognise the court’s jurisdiction. However, availing its UN observer state status, obtained in 2012, Palestine became a State Party to the ICC in 2015. According to article 12(2)(a) of the Rome Statute, the ICC can exercise jurisdiction over “The State on the territory of which the conduct in question occurred.” While most human rights groups and many members of the international community consider Israeli settlements in the Occupied Palestinian Territories (OPT) illegal, the ICC Chamber highlighted that it takes no position on the border dispute. Rather, it merely refers to Palestine as a “State” for the purposes of article 12(2)(a) of the Statute, without imputing any views on statehood. With this in mind, the ICC recognises its territorial jurisdiction extending “to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” The Chamber also acknowledged that the ICC cannot prosecute states for “inter-state disputes” but can prosecute individuals. Therefore, those potentially facing charges may consist of political or military figures, amongst others.
While the Chamber’s ruling gave a judicial green-signal on the jurisdiction question, the decision on whether to proceed with the investigation lies with the Office of the Prosecutor (OTP), headed by Fatou Bensouda. According to a former ICC chief prosecutor, this process could take approximately 18 months.
ALLEGED WAR CRIMES IN PALESTINE
After concluding a five-year preliminary investigation into the “Situation in Palestine”, in December 2019, the Prosecutor said that there is “a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.” Article 8(2)(b)(viii) of the Rome Statute of the ICC defines “war crimes” as including the occupying power’s “transfer” of its own civilians into the territory it occupies, be that “directly or indirectly.”
Organisations such as Human Rights Watch (HRW) have documented further acts that may constitute war crimes such as the killing of more than 1,500 civilians in the Gaza Strip during the 2014 Gaza War and the repeated use of lethal force by Israeli forces against Palestinian demonstrators also in the Gaza Strip since late March 2018. HRW also reported attacks by Palestinian armed groups such as the launching of “rockets and mortars” towards Israeli population centers. The ICC Chamber has noted that it will investigate crimes committed by both Israeli forces and Palestinian armed groups.
RECEPTION AND FURTHER CHALLENGES
Despite Palestinian groups also facing the prospect of prosecution, the Palestinian Foreign Ministry described the ruling as a “historic day for the principle of accountability.” B'Tselem, an Israeli human rights organisation, embraces the ruling, contending that even before an investigation begins, the ICC’s decision may have a “restraining effect on Israeli actions” such as preventing further forcible transfers of Palestinian civilians. The Deputy Regional Director for the Middle East and North Africa at Amnesty International - Saleh Higazi - says the decision provides an opportunity to “end the cycle of impunity,” for human rights violations in the OPT. Conversely, Israel’s Prime Minister, Benjamin Netanyahu has criticised the decision as “pure antisemitism,” while the current foreign minister labelled the ICC as a “political tool of anti-Israeli propaganda.”
International lawyer, Diana Buttu, argues that it is likely the ICC will “face political pressure not to proceed.” Australia, Austria, Brazil, the Czech Republic, Germany, Hungary and Uganda have previously submitted to the ICC that since Palestine was not a state, the court had no jurisdiction to investigate alleged war crimes. While the Pre-Trial Chamber’s ruling clarifies the jurisdiction question, political lobbying by states may hamper the prospects of an ICC investigation. Further, any ICC investigation is not expected to be speedy. Nevertheless, this ruling remains significant and Michael Lynk – an independent UN human rights expert – has called on the international community to support and cooperate with the ICC process, reinforcing the message at the heart of the Rome Statute’s preamble.
Ayesha is a LLB student at the University of Leeds. As an aspiring barrister, she enjoys advocacy and has spoken at platforms including Tedx and GESF. She has a key interest in both Public and International law. She is also founder of a student-led initiative 'COSMOS' that organises projects to promote the UN Sustainable Development Goals.