Jurisdiction of the International Criminal Court in the situation of Israel and Palestine

Introduction:

As of July 2024, the International Criminal Court (ICC) is still highly contentious in international law and diplomacy as it navigates a challenging jurisdictional terrain related to the Gaza Strip conflict, raising various of legal, geopolitical, and historical issues. This article aims to update readers on the historical and current jurisdictional situation.

The ICC and The Rome Statute:

The Rome Statute established the ICC in 2002, granting the court the authority to bring criminal cases against individuals for crimes against humanity (Article 7), war crimes (Article 8), crimes of aggression (Article 8bis), and genocide (Article 6). The ICC has jurisdiction in three circumstances in accordance with Article 12 of the Rome Statute: where crimes are committed by members of a State Party, on the territory of a State Party, or where the situation is referred by the UN Security Council. Thus, in this case, the State of Palestine’s non-member observer state admission to the Rome Statute is a crucial issue when considering the ICC’s jurisdiction over the Gaza conflict.

Palestine’s status as a non-member observer state at the United Nations, granted in 2012, enables it to participate in and sign multilateral treaties and agreements. This includes the Rome Statute of the ICC. Despite not being a full member state, Palestine can engage in treaty-making processes and ratified the Rome Statute on January 2, 2015. By doing so, Palestine accepted the ICC’s jurisdiction over crimes committed within its territory or by its nationals. This status allows Palestine to pursue international legal avenues for accountability and justice concerning alleged crimes involving its territory or nationals.

Palestine’s Accession and Legal Proceedings:

Since January 2015, Palestine has been a party to the Rome Statute, declaring that the ICC had jurisdiction over crimes committed, “in the occupied Palestinian territory, including East Jerusalem, since June 13,  ”. Israel, a non-party to the Rome Statute, objected to this decision on grounds that Palestine does not meet the requirements for statehood under international law, precluding the ICC from asserting jurisdiction over Palestinian territory and its nationals.

Palestine’s contested statehood status complicates its ability to fully participate in international legal frameworks such as the ICC. Despite being recognized as a non-member observer state by the UN, Palestine’s accession to the Rome Statute in 2015, which grants the ICC jurisdiction over crimes committed on its territory or by its nationals, remains politically contentious. Some countries and entities dispute Palestine’s legal status as a sovereign state, challenging the ICC’s authority to adjudicate crimes in Palestinian territories. This ongoing debate underscores the complexities and challenges surrounding Palestine’s engagement with international law and institutions.

Nevertheless, the Office of the Prosecutor (OTP) of the ICC started a preliminary investigation into the situation. By December 2019, Prosecutor Fatou Bensouda had determined that there was a good reason to carry out an inquiry into claims that Palestinian armed groups and Israeli troops had committed war crimes in Gaza and the West Bank. She then requested a ruling from the Pre-Trial Chamber on the ICC’s jurisdiction in these proceedings.

The Pre-Trial Chamber’s Decision:

In February 2021, the Pre-Trial Chamber I of the ICC issued a decision on their jurisdiction over the situation in Israel and Palestine. The ICC confirmed they hold territorial jurisdiction over occupied territories in Palestine since the 1967 Six-Day War, including Gaza, the West Bank, and East Jerusalem. The decision addressed arguments challenging the ICC’s jurisdiction, emphasizing that Palestinian statehood, while unresolved in international law, was deemed irrelevant to the ICC’s authority. Instead, the Chamber underscored that Palestine’s accession to the Rome Statute sufficed to grant the ICC jurisdiction over alleged crimes committed within these territories.

While Israel criticised the ICC for purportedly exceeding its jurisdiction and maintained that such disputes should be settled through direct negotiations, Palestinian authorities applauded the decision as an important step towards delivering accountability and justice against perpetrators of international crimes. As of July 2024, the ICC Prosecutor is actively investigating the situation in these areas. The investigation includes alleged war crimes and crimes against humanity committed by various parties. The Prosecutor is currently examining evidence and may issue arrest warrants if there is sufficient evidence to charge individuals with specific crimes. However, no arrest warrants have been publicly announced yet.

Current Status and Challenges:

As of July 2024, the ICC’s investigation into the Gaza conflict faces several challenges:

• International Dynamics: The ICC’s involvement in the Gaza war has had an impact on global relations. The United States has long challenged the ICC’s authority over its citizens. The U.S. is an important ally of Israel and is not a party to the Rome Statute. U.S. administrations have consequently put in place safeguards, such as sanctions and restrictions on visas for ICC officials, to protect their nationals in Israel against prosecution by the ICC.
• Security and access: ICC investigators face serious security concerns when conducting criminal investigations in war areas such as Gaza. Access to witnesses and evidence is highly restricted due to the difficult security situation and the ongoing siege of Gaza.
• Political Resistance: Israel continues to contest the jurisdiction of the ICC and declines to assist with the investigation. Israel emphasises its own legal processes for dealing with alleged crimes while claiming that the court’s acts are politically motivated and harm peace efforts.
• Legal and procedural obstacles: In complex conflict situations, determining an individual’s criminal liability necessitates extensive legal labour. This calls for assembling indisputable proof, protecting witnesses, and negotiating difficult political situations, which is a resource and time-intensive endeavour.

Broader Implications:

Debates concerning international justice and accountability are brought to light by the ICC’s proceedings over the Gaza conflict. To combat impunity, ensure justice for victims of major crimes, discourage future violations, and help to accomplish a more just and peaceful ending of the conflict, supporters contend that the ICC’s involvement is essential. However, some critics do warn that the ICC’s activities could heighten hostilities and obstruct peace talks, contending that concentrating on Israeli and Palestinian organisations can exacerbate tensions and solidify stances, making attempts towards a peaceful resolution more difficult.

The United States has been critical of the ICC’s jurisdiction over Palestine, arguing that it undermines peace efforts and challenges the court’s legitimacy. The U.S. has historically been a staunch ally of Israel and has expressed concerns that ICC investigations could exacerbate tensions rather than contribute to justice.

The European Union has generally supported the ICC’s role in holding perpetrators of international crimes accountable but has also emphasised the need for balanced approaches that do not preclude the possibility of renewed peace talks. The EU has expressed support for the ICC’s efforts to address human rights abuses while urging all parties to engage in dialogue to resolve the conflict.

Russia has similarly critiqued the ICC’s involvement, suggesting that it serves as a tool of Western influence rather than an impartial judicial body. Russia’s comments reflect its broader geopolitical stance and its opposition to international interventions perceived as biased.

Conclusion:

Ultimately, As of July 2024, the question of the ICC’s jurisdiction over the Gaza Strip conflict is still disputed and susceptible to change. Although the court has confirmed its authority and opened investigations, several obstacles stand in the way of advancement. The ICC’s ability to administer justice and play a role in resolving one of the longest-running and most unstable wars in the world will be greatly impacted by how these issues are resolved. The ICC’s initiatives will continue to be a major topic of discussion in the legal, political, and diplomatic spheres on a global scale if these patterns continue.

Malaika Rehman