In a landmark decision on February 5, the International Criminal Court (ICC) at The Hague determined that it has jurisdiction over the Israeli-occupied territories of the West Bank, Gaza, and East Jerusalem, paving the way for a potential investigation into allegations of war crimes committed by the Israeli Defence Forces (IDF), Hamas, and other Palestinian armed groups in the region.
The ruling was hailed as a victory for international criminal justice and accountability, especially given that Israel has historically been fiercely protected by Western actors, led by the United States (US), in multilateral fora. For various international groups and Palestinians, it marked a major breakthrough in their years-long fight for the legal recognition of human rights violations committed across Palestine. “In adopting the Rome Statute and creating the International Criminal Court, the international community pledged its determination to end impunity for the perpetrators of grave crimes”, said Michael Lynk, the UN’s Special Rapporteur for the situation of human rights in the Palestinian territory since 1967. “Yet, in the context of Israel’s protracted occupation, the international community has permitted a culture of exceptionalism to prevail,” he added.
Additionally, the decision was also seen as an important step forward in restoring the credibility of the court itself, which has consistently faced criticism since its inception for overlooking heinous atrocities by Western powers and instead focusing its efforts on targeting only African nations and prosecuting their leaders.
However, the move also unsurprisingly received severe backlash from Israel and its allied countries. Embattled Prime Minister Benjamin Netanyahu accused the body of engaging in “pure anti-Semitism” and lamented that the court originally established “to prevent atrocities like the Nazi Holocaust against the Jewish people” was now unfairly targeting the sole Jewish state in the world that has a “firm democratic regime which sanctifies the rule of law, and is not a member of the court.”
The United States (US), Australia, Canada, the Czech Republic, Brazil, Uganda, Germany, and Hungary also voiced their opposition to a potential probe in the occupied territories, arguing that the absence of a sovereign Palestinian state meant that it could not legitimately accede to the Rome Statute (the ICC’s founding document), and therefore the court could not exercise jurisdiction over the matter. However, in a severe diplomatic blow to Israel, the court ruled that for its purposes, Palestine qualified as the state on the territory where the events in question occurred—which include the 2014 Gaza war, the “Great March of Return” of 2018, and Jewish settlements in the West Bank and building in East Jerusalem—and defined the territorial jurisdiction as extending to those areas.
While there is no doubt that the ICC’s decision portrays the institution as a strong and independent international criminal tribunal ready to extend accountability to the strong and weak alike, how real is the possibility of war crimes suits against Israel and its leaders?
Also read: Trump’s Middle East Peace Plan: Peace for Whom?
Well, it’s complicated. Technically, the ICC works on the principle of complementarity, which means that it comes into the picture only when the states in question are unwilling or unable to conduct investigations and deliver justice on their own. So, in this case, if the court, at the behest of Chief Prosecutor Fatou Bensouda, chooses to move forward with the process, it will first question whether Israel already has or will in the future adjudicate issues relating to Gaza and the settlements. It’s important to note here that Palestine, who joined the court in 2015, has already accepted the jurisdiction of the court of the alleged crimes in the occupied territories.
If Israel is able to demonstrate that it is already conducting or will soon undertake investigations into criminal activities by its soldiers (IDF) in Gaza, it could escape the scrutiny of the body. This is exactly what happened in the case of alleged war crimes by British soldiers in Iraq between 2003 and 2008. The court dropped its investigation into the matter in December 2020, after Bensouda said that her office “could not substantiate allegations that the UK investigative and prosecutorial bodies have engaged in shielding, that is blocking inquiries, based on a careful scrutiny of the information before it.”
However, this may not be the case when looking at the issue of settlements in the West Bank and building in East Jerusalem, since Israel considers them to be legal. So here, Bensouda may be able to move the matter forward to the phase of individual criminal charges. If the names of senior Israeli political or military figures come up during the court’s proceedings, they could face international arrest warrants upon travel abroad. However, potential imprisonment of officials isn’t the only thing Israel fears. A negative ruling on Israeli activity in the West Bank and East Jerusalem—by essentially labelling them as war crimes—would seriously undermine the state’s claims to the ancient Biblical territory that it says are indigenous to that area.
Given that Israel’s approach to the territorial dispute has significantly focused on downplaying the vast power disparity between the two sides and weakening the Palestinian negotiating position by moving away from the requirements of international law (courtesy of the unrelenting support from the US), a negative ruling against Tel Aviv relating to its claims to the occupied territories will not be taken kindly, and could significantly complicate peace efforts and negotiations aimed at overcoming decades of distrust, destruction, and insecurity between the conflict parties. Though having the support of the ICC will uplift and bring legitimacy to the Palestinians’ position (since the court has never weighed in on the issue before), it could simultaneously make it extremely difficult to incentivise Israel—who has never really conceded to anything on the matter—to accept Palestinian self-determination, which would then only further widen the Israeli-Palestinian divide.
It is not a stretch to assume that the US (who is not part of the ICC) would severely condemn such a decision as well (due to Washington’s strong commitment to preserving Israeli security and interests), which would inevitably also hurt President Biden’s efforts to renew ties with Palestine, such as the plan to reopen the PLO office in Washington, which the Trump administration closed in 2018. This is because a current provision in US law requires the office to close if Palestinians take Israel to the ICC.
Whether it reaches this point though, remains to be seen. Chief Prosecutor Bensouda’s term at the court is slated to end in June, which means decisions on the case will be made by her successor. British human rights lawyer Karim Khan was chosen for the position last week and will begin in nine-year term on June 15. Khan, who is currently leading a UN group investigating war crimes committed by the Islamic State (IS) in Iraq, is a familiar figure at The Hague, where he served over his career both for the defence and prosecution. Though observers believe that both the US and Israel were rooting for his appointment—due to him being the citizen of an allied nation (UK), his experience as a defence lawyer, and his previous criticism of the court for sometimes relying on shaky evidence—there have been no public comments from either side on the matter. Regardless, Khan has his work cut out for him, as he will be responsible for shaping the court’s image and effectiveness at carrying out its judicial purpose and delivering justice for the years to come.
And that challenge will begin with this case. The court has come under severe criticism over the years due to its slow pace of convictions—in 18 years of operations, the ICC has delivered only nine convictions, four acquittals, and numerous unresolved cases—which has led to calls for a shake-up of the system and its approach to addressing issues. Given that most international bodies are seen as merely wrist-slapping mechanisms that serve the interests of powerful nations despite the promise of independence and impartiality, Khan will have to consider the impact of his decision on the credibility of the court relative to the potential political ramifications that may follow. Despite Israel having the support of the major ICC donors (like Germany) and other prominent non-member Western nations, a majority of other member countries may support the probe into the Jewish State, which means that there is a chance that he could proceed with the investigation. What happens next, though, only time will tell.