What does the unprecedented move by the International Criminal Court mean in the context of Palestine and Israel?
In a surprising and exceptional visit, the Prosecutor of the International Criminal Court (ICC) made a brief statement from the Rafah border crossing on the Egyptian side of the Egypt-Palestine border, announcing the opening of the ICC Prosecutor's Office to investigate war crimes, crimes against humanity, and other crimes committed in both Palestine and Israel. This marks the first action by an international judicial body since the beginning of the Israeli-Palestinian conflict in 1947. It is worth noting that this conflict has lasted as long as the United Nations Charter, the Universal Declaration of Human Rights, and international humanitarian law.
So, what does this extraordinary move mean for the Palestinian issue, and what is its significant importance? What can it achieve for human rights, justice, accountability, and reparations?
In this blog prepared by experts from Mwatana for Human Rights, which established an Accountability and Redress Unit, years ago, we provide concise answers to several relevant questions.
The International Criminal Court is an independent international judicial body established in 1998 under the Rome Statute that came into force on July 1, 2002. Its headquarters are located in The Hague, Netherlands. The ICC's jurisdiction allows it to investigate and prosecute the most serious crimes of international concern, including genocide, war crimes, crimes against humanity, and the crime of aggression, as defined by the Rome Statute, international humanitarian law, and international criminal law.
The ICC Prosecutor can independently open investigations in various situations, including:
Since its establishment, the ICC has opened 17 investigations and examined 31 cases. The ICC's judges have issued 9 arrest warrants, 10 convictions, and 4 acquittals. The ICC has also issued 40 arrest warrants, leading to the detention of 21 individuals in the ICC's detention center, and they have appeared before the court, thanks to the cooperation of states. Currently, 16 accused individuals remain at large, while charges against 5 individuals were dropped due to their deaths.
According to the Rome Statute, the ICC Prosecutor's Office is responsible for conducting preliminary investigations into alleged crimes within the jurisdiction of the ICC. Its duties include conducting investigations independently, impartially, objectively, effectively, and efficiently, in accordance with legal obligations and the core values of the Court.
The Rome Statute also emphasizes that the Prosecutor's Office operates independently and is not subject to external influence from sources such as states, international organizations, non-governmental organizations, or individuals. In the performance of their mandate, the Prosecutor is assisted by two Deputy Prosecutors, and the Office is divided into two sections: the Prosecution Division and the Integrated Services Division. In addition to conducting preliminary investigations, the Prosecutor's Office is responsible for pursuing prosecutions of individuals involved in genocide, crimes against humanity, war crimes, and the crime of aggression.
Since February 12, 2021, Mr. Karim A. A. Khan QC was elected as the Prosecutor of the International Criminal Court during the nineteenth session of the Assembly of States Parties to the Rome Statute, held in New York. Mr. Khan took the oath of office on June 16, 2021. He is a lawyer and legal counsel with over 30 years of professional experience in international criminal law and human rights. He is of British nationality with Pakistani roots and holds an LLB with Honors from King's College, University of London, in addition to various other degrees and qualifications. He has extensive experience as a prosecutor and defense lawyer for victims in local and international criminal courts, including the International Criminal Court, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, and the Special Court for Sierra Leone. He also served as the first Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL in Iraq between 2018 and 2021 and represented victims of human rights violations in Africa and Asia.
From the Egyptian side of the Rafah border crossing with Palestine, Karim Khan, the Prosecutor of the International Criminal Court, delivered a brief statement in which he said, "I am now at the Rafah crossing, we can see Gaza, or at least the cranes on the horizon. These are tragic days; I wish I could get into Gaza and Israel on this special mission. The suffering of men, women, and children is clear and ongoing. As the Secretary-General of the United Nations, the Head of OCHA, and the Head of the World Food Programme stated, the deterioration of the humanitarian situation is worsening. We have now opened an investigation into the crimes allegedly committed in Israel on October 7 and also in Gaza and the West Bank. People are being targeted based on their ethnicity, beliefs, civilization, or nationality. We are investigating independently the situation in Palestine and events in Israel, as well as allegations that Palestinians have committed crimes. We seek cooperation and assistance, and we will need the determination, capacity, and professionalism to examine the evidence and distinguish between claims and facts. The most important thing at this moment is to ensure the removal of all restrictions on humanitarian aid that should go to children, men, and women. They are innocent and have rights under international humanitarian law and international human rights law. Therefore, this moment is when we should share our humanity, regardless of our beliefs, and find common ground. We must also think about the children and civilians who are part of us, and we are part of them. It must be emphasized that international humanitarian law guarantees the right to protection for all those who are suffering now; this is a right guaranteed to everyone since the end of World War II, and the task of our office is to promote those rights and that protection under our jurisdiction."
Starting from the visit itself and the location and timing of the briefing presented by the Prosecutor of the International Criminal Court, there are several significant implications and dimensions. Among these, it signifies the announcement of the initiation of the Prosecutor's action and the affirmation of the Court's jurisdiction over war crimes and crimes against humanity committed in the territory of Palestine. It represents the declaration of launching an international criminal investigation, as well as documenting an initial step towards the crime of collective punishment, the siege, and the denial of humanitarian access to the inhabitants of the State of Palestine. Additionally, the visit, the location of the press briefing, and the location and contents of the press conference held by the Prosecutor reveal the presence of Arab and Egyptian support for the Court's action.
The opening of an investigation in accordance with the mandate of the Prosecutor of the International Criminal Court marks the beginning of a process that may include the issuance of arrest warrants and the prosecution of individuals responsible for committing war crimes, crimes against humanity, and other crimes in Palestine and Israel. These arrest warrants would be valid within the jurisdiction of the ICC, covering 123 states that are parties to the Rome Statute. This is a significant step towards accountability for those responsible for war crimes, crimes against humanity, and other crimes committed in Palestine and Israel, aiming to deter such actions and protect civilians, ultimately ending the culture of impunity.
The Rome Statute, which established the International Criminal Court, grants the Court jurisdiction over four primary crimes:
War crimes mean the following: serious violations of the Geneva Conventions dated August 12, 1949, which include any of the following acts against persons or property protected under the relevant Geneva Conventions: actions that constitute serious violations of the Geneva Conventions in the context of armed conflict, deliberately directing attacks against civilian populations as such or against individuals who are not taking direct part in hostilities, deliberately directing attacks against civilian objects, meaning objects that are not military objectives, including attacking individuals, installations, materials, units, or vehicles involved in any humanitarian or peacekeeping mission under the United Nations Charter, as long as they are entitled to the protection afforded to civilians or civilian objects under international humanitarian law.
It also includes, for example, the use of child soldiers; killing or torturing persons such as civilians or prisoners of war; deliberately directing attacks against hospitals, historical monuments, buildings dedicated to religious, educational, artistic, scientific, or charitable purposes.
It further encompasses willful killing, torture, or inhuman treatment, including biological experiments; causing serious bodily or mental harm, extensive destruction and appropriation of property, compelling prisoners of war or other protected persons to serve in the forces of a hostile power, willfully depriving prisoners of war or other protected persons of the rights to a fair trial and regular trial, deportation or unlawful transfer or unlawful confinement, and taking hostages.
Crimes against humanity are serious violations committed as part of a widespread or systematic attack against any civilian population. They include crimes listed in the Rome Statute such as murder, rape, imprisonment, enforced disappearance, enslavement—especially of women and children—sexual slavery, torture, racial segregation, and deportation.
Genocide means acts committed with the intent to destroy a national, ethnic, racial, or religious group, in whole or in part, such as killing members of the group, causing serious bodily or mental harm to members of the group, deliberately creating conditions of life calculated to bring about the physical destruction of the group in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group.
Crime of aggression means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State; the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; the blockade of the ports or coasts of a State by the armed forces of another State; an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
Since April 1, 2015, Palestine has come under the jurisdiction of the International Criminal Court after acceding the Rome Statute on January 2, 2015, and becoming a State Party, following the deposit of its accession instrument with the Secretary-General of the United Nations. It was announced on January 7, 2015, that the International Criminal Court had accepted Palestine's request to join the court for consideration by the Prosecutor.
Palestine had taken its first steps to join the Rome Statute on January 22, 2009, following the conclusion of Israel's 'Operation Cast Lead' in Gaza. At that time, Ali Khashan, the Palestinian Minister of Justice, submitted a declaration under Article 12(3) of the Rome Statute, allowing the International Criminal Court to have retroactive jurisdiction to investigate crimes committed in Palestinian territories since July 1, 2002.
In accordance with Article 15 of the Rome Statute, the Prosecutor's office began implementing a plan to determine whether there is a reasonable basis for proceeding with the investigation. After three years, in April 2012, the Prosecutor's office rejected the Palestinian request for the International Criminal Court's jurisdiction over Palestinian territories, on the grounds that Palestine's status at that time within the United Nations was that of an 'observer entity,' not a state, rendering Palestine incapable of signing the Rome Statute, and thus, Palestine could not make a declaration of acceptance of the court's jurisdiction under Article 12(3) of the Rome Statute.
On November 29, 2012, the United Nations General Assembly adopted Resolution 67/19 regarding the status of Palestine in the United Nations, granting the Palestinian Authority the status of a 'non-member observer state.' However, this resolution did not retroactively apply to enable the adoption of the declaration of acceptance of the International Criminal Court's jurisdiction submitted by the Minister of Justice in 2009. On September 2, 2014, the Prosecutor of the International Criminal Court, Fatou Bensouda, issued a statement entitled “Everyone's right to know the truth about the International Criminal Court's jurisdiction over Palestine” to address rumors suggesting that the International Criminal Court was avoiding investigating alleged war crimes in Gaza due to political pressure. The Guardian published an opinion piece by the Prosecutor Fatou Bensouda, “The truth about the International Criminal Court and Gaza,” in which she clarified that the International Criminal Court did not have jurisdiction to investigate alleged war crimes in Palestine unless Palestine granted it judicial authority over its territories.
On January 1, 2015, Palestine declared its acceptance of the International Criminal Court's jurisdiction starting from June 13, 2014, in accordance with Article 12(3) of the Rome Statute. On January 2, 2015, Palestine joined the Rome Statute by depositing its accession instrument with the UN Secretary-General. On January 7, the International Criminal Court accepted the declaration and sent it to the Prosecutor for consideration, and it came into effect on April 1, 2015.
After receiving a valid declaration from the Palestinian government in accordance with Article 12(3) of the Rome Statute, the Prosecutor, Fatou Bensouda, announced on January 16, 2015, the opening of a preliminary examination into the situation in Palestine under Article 25(1)(c) of the Office of the Prosecutor's Regulations. This preliminary examination aimed to assess whether there was a reasonable basis to proceed with an investigation into alleged crimes committed on Palestinian territories. Simultaneously with the announcement of the preliminary examination into the situation in Palestine, the Palestinian government submitted its first communication to the International Criminal Court on June 25, 2015, regarding Israel's crimes committed in the occupied West Bank and during the 2014 Gaza war. However, this initial examination did not lead to a decision to open an investigation at that time.
On May 22, 2018, Palestine, represented by its Foreign Minister Riyad al-Maliki, referred the “Situation in Palestine” to the Office of the Prosecutor of the International Criminal Court in accordance with Article 13(a) related to the exercise of jurisdiction and Article 14 concerning the “Referral by a State Party.” On May 24, 2018, the Presidency of the International Criminal Court decided to allocate the Situation in Palestine to the Pre-Trial Chamber with immediate effect.
On December 20, 2019, a press release was issued by the Prosecutor of the International Criminal Court, Fatou Bensouda, after concluding the preliminary examination of the Situation in Palestine. In the press release, she announced that all the necessary legal criteria required by the Rome Statute for opening an investigation in Palestine had been satisfied. However, she mentioned in her statement the existence of a dispute over the territorial scope where the investigation could take place. She submitted a request to the Pre-Trial Chamber I for a decision regarding the territorial jurisdiction of the International Criminal Court, which was resubmitted on January 22, 2020. On January 28, 2020, Pre-Trial Chamber I of the International Criminal Court issued an order inviting Palestine, Israel, and interested third-party states to submit their observations.
On February 5, 2021, Pre-Trial Chamber I, with the majority decision, but with Judge Peter Kovacs objecting, extended the jurisdiction of the International Criminal Court in Palestine to include the territories occupied by Israel since 1967, namely Gaza, the West Bank, including East Jerusalem. This determination thus defined the geographical scope of the International Criminal Court's jurisdiction.
The decision of the former Prosecutor of the International Criminal Court to initiate an investigation into crimes committed in Palestine, followed by the Pre-Trial Chamber I's decision to determine the geographical scope of the ICC's jurisdiction, provoked anger and opposition from Israel and its then-Foreign Minister Benjamin Netanyahu. Netanyahu accused the Court of being a political body rather than a judicial one and alleged that the Court exhibited anti-Semitism. He stated in a press release, “The Court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting one state for the crime of being the nation-state of the Jewish people.” Netanyahu called for sanctions against the International Criminal Court and its Prosecutor. The Israeli government has consistently challenged the International Criminal Court and launched a media campaign against the Court and its judges since the moment the Court accepted Palestine's declaration of jurisdiction in Palestine. Netanyahu stated that no Israeli soldier would appear on front of the International Criminal Court as a war crimes defendant.
Since Palestine's request for membership in 2015, Israel has taken measures to impose restrictions on the Palestinian government, including freezing the financial transfers designated for the government and stopping the transfer of Palestinian taxes.
Despite Israel not being a party to the Rome Statute and therefore not subject to the jurisdiction of the International Criminal Court, its crimes committed in Palestinian territories, including the occupied Palestinian territories, fall within the Court's jurisdiction. This allows the Court to hold individuals accountable for alleged crimes, regardless of the nationality of the perpetrators, and to counteract the prevailing climate of impunity.
The positions of successive U.S. administrations have aligned with Israel's stance on the Court and its judges. The American campaign against the Court reached its peak during the tenure of former U.S. President Donald Trump, who imposed sanctions on the Court and its judges.
The Israeli-Palestinian conflict is one of the most historically significant and complex conflicts in the contemporary world, with roots that stretch back almost a century. It is a multifaceted issue involving political borders, settlements, refugees, human rights, and human rights violations.
To contribute to the success of the International Criminal Court's mission in Palestine and Israel, Arab states can provide political and diplomatic support for the Court's work, along with logistical facilitation and the necessary financial support to carry out its operations effectively, efficiently, and accurately.
A vast amount of information and facts about the Court's work, jurisdiction, and judges are available on the Court's official website and on its social media accounts and pages.
