The International Criminal Court, in the Hague is one of the highest courts in the world set up based on the Rome Statute of 1998. This intergovernmental international tribunal today exercises jurisdiction over 123 member states to prosecute international crimes such as genocide, war crimes, crimes against humanity and crimes of aggression. On December 20, 2019, the International Criminal Court’s chief prosecutor Fatou Bensouda announced a long pending investigation into the alleged war crimes that have been committed during the Israel-Palestine conflict.
Palestinian authorities in 2009 had submitted an adhoc declaration to the ICC accepting the jurisdiction of the court. However, only post 2012, the United Nations recognised the sovereign state of Palestine by upgrading its status to non-member observer state. The state of Palestine is recognised with this status by 138 members of the UN. In 2015, Palestine became a signatory to the Rome Statute allowing it to become an independent member state of the ICC.
Hours before the prosecutor released her statement, Israeli Attorney General Avichai Mandelblit argued that Palestine is not a sovereign state and Israel is not a signatory, and therefore the court has no jurisdiction over the case which has been under preliminary examination for the past five years at the ICC.
Israel also filed a brief that said the ICC intervention would merely politicize a diplomatic dispute which Israel and the Palestinians must resolve through negotiations. The chief prosecutor stated that, “I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”.
She also went on to say the complete criteria for a full investigation had been fulfilled. Palestine welcomed this decision while many including Israel, the United States of America, Hungary, Australia among others opposed this.
However, as the Israeli judicial system already makes provision for punishing those accused of war crimes, based on the principle of complementarity, the ICC may not have jurisdiction to prosecute these crimes unless the national authorities fail to do so.
Fatou Bensouda, also said, she found “a reasonable basis to believe that members of Hamas and Palestinian armed groups” are potentially guilty of war crimes, but don’t have a judicial system to punish such violations. Israel is charged for violating the laws of the 2014 Gaza War including claims of them attacking the installations of the International Community of the Red Cross. Palestinians are accused of attacking civilian population and using them as human shields.
However, acknowledging the “unique and highly contested legal and factual issues” regarding the question of Palestinian statehood, she requested that the ICC’s Pre-Trial Chamber “rule expeditiously” on where the court has jurisdiction.
As Israeli laws provide for the prosecution of war crimes, the prosecutor must also be able to prove that they have been unsuccessful in trying these crimes under domestic law to avoid issues of the principle of complementarity under article 17 of the Rome Statute. The gravity (under article 17(1)(d)) of the nature of these crimes should also be enough for the ICC to try them, but given that the crimes against humanity and war crimes are both considered grave at the ICC, this should not pose a problem.
While the prosecutor invoked article 19(3) in her statement, the European Centre for Law and Justice in Strasbourg has pointed out that the prosecutor has ignored well-established, unambiguous customary international legal norms regarding non-party States and treaties to which they have not acceded.
They have further stated that the prosecutor’s claim that the ICC can exercise territorial jurisdiction over the West bank Settlements and Gaza Strip are false “for a variety of reasons both historic and legal, including, the international legal principle of uti possidetis juris and the right to self-defence under UN Charter Article 51, both of which support Israel’s right to exert sovereignty in these locations”. They have also refuted the prosecutors claims that she doesn’t require to “seek the authorisation of the Pre-Trial Chamber to open an investigation, under article 15(3) of the Statute” by saying that Palestine is not a “State” under international law, and hence the referral itself is null and void.
Palestine remains a non-party member state to the ICC. The ECLJ continues to discuss in their report the error of territorial jurisdiction and state historical facts to point out that the said territory is under the control of Israel and as Israel is not a signatory to the Rome Statute, this remains beyond the scope of the jurisdiction of the court.
Under article 53(1) of the Rome Statute, the Prosecutor is obliged to consider issues of jurisdiction, admissibility and the interest of justice before deciding to further launch an investigation and prosecute the accused. There is, however, no time limit imposed on this process.
Israeli prime minister Benjamin Netanyahu reacted to the news of the investigation by calling it “a black day for truth and justice” and “pure antisemitism”, while Israeli newspaper Yedioth Ahronoth condemned, “The Hague’s hypocrisy” in a headline.
If the judges rule that this is not under the jurisdiction of the court, then Palestine can re-appeal the same to the court’s appeal chambers. Israel however can not do so, being a non-member. The prosecutor has been criticised for wasting the court’s time and resources. This act of the prosecutor puts the issue of Palestine’s statehood back into the spotlight.
Palestinians are currently pushing for the European Union’s unilateral recognition of statehood to counter Israeli annexation measures. The Palestinian’s suit for war crimes against Israel is currently one of their prime diplomatic warring arenas.
The territories in question have been recognised by the UN as “occupied” Palestine, and more than 40 legal briefs signed at the ICC before the given deadline of February 14, question whether Palestine is a state and whether territory in question is part of that state. Half the arguments in this debate support and welcome the court’s decision to eradicate impunity for crimes against humanity and acknowledge Palestine’s statehood, while the others support the legal argument that the court has no jurisdiction over Israel and its territories.
The Israel-Palestine conflict has been documented worldwide for a series of violations of international humanitarian law and grave breaches of the Geneva Conventions. Michael Lynk, the Special Rapporteur for the situation of human rights in the Palestinian territory occupied since 1967 said, “In a world that proclaims its devotion to human rights and a rules-based international order, it is vital that the international community defend the decision of the ICC Prosecutor to advance her investigation and to seek a favourable ruling from the Pre-Trial Chamber on the issue of territorial jurisdiction.”
He also said, “International law must be the basis for seeking justice for the victims of war crimes in this interminable conflict, and the international community must resolutely support the laws and the institutions that it has created and nurtured.”
Such a move by the ICC ensures accountability for those responsible.
Irrespective of whether the court decides that it has territorial jurisdiction over the mentioned lands and decides to go ahead and prosecute this case, this is an awakening call for Israel and Palestine to hold those responsible for such inhumane acts and provide the victims the timely justice they deserve.
*Avantika Singh, is a Masters student at the Indian Institute of Technology, Madras. She is interested in pursuing International law and human rights for further research and studies. She has pursued research at the Graduate Institute, Geneva in International Security