Progress in Investigating Alleged International Crimes in Palestine
By an IPS Staff Writer
On March 3, 2021, the International Criminal Court (ICC), a permanent international court with jurisdiction to prosecute individuals and States for international crimes against humanity, ruled that Chief Prosecutor Fatuo Bensouda has jurisdiction to prosecute crimes in the State of Palestine (Gaza and the West Bank). In a 2–1 ruling, the ICC effectively ended debate on the investigative eligibility of Israel and Palestine. Primarily, the investigations concern Hamas allegedly launching rockets indiscriminately at Israel and the IDF allegedly using residential areas to launch military projectiles.
The ICC’s Recognition of the State of Palestine as a State Party by the ICC has sparked controversy across the globe. Israel and the United States, among other countries, have argued that Palestine is ineligible to join the ICC because it has not met the conditions for full statehood under international law, and that the Court’s territorial jurisdiction presumes that the crimes were committed on the territory of a completely sovereign state. The ICC Pre-Trial Chamber (PTC) dismissed these claims, concluding that statehood under general international law was essentially meaningless when implementing the jurisdictional provisions of the Rome Statute (the treaty that established the ICC’s functions, powers, and structures). At the same time, the Court stressed that confirming jurisdiction for the purposes of an investigation did not prevent any defendant from raising jurisdictional defenses in their own case at a later date.
Israel contested the Court’s ruling. Despite having the opportunity, Israel did not directly participate in the ICC proceedings, since they are not a party to the Rome Statute, as membership is voluntary. The Israeli government has historically questioned the ICC’s validity, most recently with Prime Minister Benjamin Netanyahu calling the PTC’s decision “pure anti-Semitism.”
In a statement released by a State Department spokesperson, the United States reiterated its long-held stance that the Court’s “jurisdiction should be reserved for countries that agree to it,” leaving out the residents of Non-State Parties (Israel, in this case). ICC Judge Peter Kovacs’s dissenting opinion, which echoes claims made by the U.S. and other critics of ICC, will likely be the basis for further outspoken disagreements with the Pre-Trial Chamber’s majority opinion.
The PTC determined that Palestine had adopted the Rome Statute’s accession procedure, via the United Nations Secretary General, who approved it “through the decision by the General Assembly to accept Palestine as a non-Member observer State in the UN”. Concerning Palestine’s eligibility as a “State” under the statute, the Court noted that “the only way to challenge the entry into force of the Statute for a willing State Party is through the resolution of a conflict by the Assembly.” According to the PTC, no State Party had filed a dispute under the applicable clause. And, since no state challenged the State of Palestine’s accession to the Rome Statute, the question of territorial authority was resolved. According to Article 12 (1) of the Rome Statute, being a Party to the Statute entails recognition of the Court’s territorial jurisdiction: “A State that becomes a Party to this Statute therefore acknowledges the jurisdiction of the Court.” As a result, the PTC came to the conclusion that the term “State” has no significance other than “State Group” for the purposes of territorial jurisdiction. “Discerning whether that body meets the necessary qualities of statehood through international law” is then unnecessary. “It would also be inconsistent to authorize an individual to accede to the Statute and become a State Party while limiting the Statute’s inherent impact over it,” the PTC continued. In summary, the State of Palestine’s recognition as a non-member observer State in the United Nations was sufficient, and conflicting claims did not impact its ability to engage with the Rome Statute.
Israel insists that the State of Palestine’s territory is contested and that any determination of its boundaries must await a negotiated agreement. The PTC rejected this position, implying that Israel (a non-State Party at the time) would have a de facto veto regarding when and where the Court exercised its jurisdiction. “Disputed [borders] have never prohibited a State from being a Party to the Statute, [so the levied complaints] cannot prohibit the Court from exercising its jurisdiction [in the State of Palestine],” the PTC said. The PTC then agreed on the fact that the State of Palestine’s jurisdiction includes Gaza and the West Bank, as well as East Jerusalem. “By deciding on the geographical limits of its jurisdiction, the Court is neither adjudicating a border dispute under international law nor prejudging the issue of any potential borders,” the PTC added.
Finally, opponents of jurisdiction claimed that the court’s ruling was in conflict with the Oslo Accords, which gave Israel jurisdiction over offenses committed by Israeli nationals on Palestinian territory, a point raised by Judge Kovacs in his dissent. The majority of the PTC noted that the Rome Statute made provisions for other international legal responsibilities of a State Party, and that these were contradictory in the case of collaboration with the Court during an investigation or trial (on rendition of suspects, for example). However, such a conflict of commitments had no bearing on the issue of authority versus cooperation. There should be no controversy, since ICC jurisdiction is subject to complementarity, which means that no case can be brought before the ICC unless the primary jurisdiction state is capable and willing to investigate and/or prosecute. Following this argument, Israel’s primary authority over crimes committed by its citizens in Palestine is unaffected by ICC jurisdiction in situations where Israel waives its investigative and/or prosecutorial powers.
Israel’s response to the decision has been characterized by factual misunderstandings about the ICC. Netanyahu criticized the ICC for not going after Iran and Syria, an irrelevant criticism, given that the ICC has no territorial authority over those countries and they are not ICC members.
Despite the decision, the investigation can and likely will be postponed. Chief Prosecutor Bensouda’s term ends in June, and she can stall and hand over the case to her successor to prevent more controversy and political pressure. In turn, the U.S. and other pro-Israel allies may try to sway the final selection of a new Chief Prosecutor in favor of a nominee disinterested in the Palestine case. Bensouda is also personally facing extreme sanctions levied by the Trump administration, which have yet to be lifted; she also faced sanctions for her investigation into Afghanistan in 2020.
Despite these potential challenges to the investigation, the effects of it can already be felt. A young Israeli soldier on the Gaza border now realizes they might face foreign prosecution — not today or tomorrow, but possibly even later in life. This knowledge alone could have an effect on Israel’s military operations. Israel reportedly compiled a list of officials who could face ICC prosecution in advance of the PTC’s decision, likely to alert them about the possibility of arrest if they travel outside the country.
It’s important to distinguish three types of crimes for which the prosecutor has determined that she has a fair basis to prosecute. The first concerns past events involving Israelis or Palestinians (including armed groups like Hamas) that included, among other things, excessive military attacks. Following the concept of complementarity, a central issue in these situations is whether Israel is willing to investigate (or reinvestigate) events involving its citizens. If this is the case, Israel will be granted a stay in the ICC investigation. The second potential prosecutable offense involves the settlement operation in the West Bank. “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the expulsion or transfer of any or parts of the population of the occupied territory within or outside this territory,” is the crime according to the Rome Statute. The settlements in question reflect an ongoing Israeli strategy of encroachment. The final potential offense is the practice of using “non-lethal and lethal” force against Gazans demonstrating at the Israeli-Palestinian border wall, which will be investigated by the ICC. This final aspect of the ICC inquiry may have far-reaching implications outside of the Israel-Palestine dispute. Wherever democracy and freedom are being asserted or restored in the streets in places likeMoscow, Delhi, and even Washington D.C., a clear declaration that unjustified lethal (or grievously damaging) force against nonviolent demonstrators is an international crime would send waves to governments around the world.
