After years of deliberations over whether the International Criminal Court (ICC) has jurisdiction in the Palestinian Territories, chief prosecutor Fatou Bensouda has announced the opening of alleged investigations into war crimes committed in the territories on 3 March 2021. This follows the ruling on 5 February 2021 that the Court’s jurisdiction extends to the territories occupied by Israel since the Six Day War in 1967. With the opening of the investigation, the ICC will now look into alleged crimes committed by both the Israeli Army and armed Palestinian groups such as Hamas since 13 June 2014. This move by the ICC represents a major development in the Israeli-Palestinian conflict.
What does the ICC investigate?
Following Bensouda’s announcement, the ICC can now exercise its jurisdiction in the “Situation in Palestine”, which encompasses Gaza, the West Bank and East Jerusalem. The priorities of the investigations are still to be announced due to the ICC’s limited resources and operational challenges during the Covid-19 pandemic. The investigations will include the 2014 Gaza War, the 2018 Gaza border clashes, as well as the illegal settlement-building by the Israeli government in the West Bank (the latter is described by Israeli Prime Minister Benjamin Netanyahu as “build[ing] a house in [Israel’s] eternal capital of Jerusalem”). The investigations promise to contribute to ending “a long cycle of violence and insecurity” for victims of crimes on all sides.
Controversies about the ICC jurisdiction
While the ICC will not limit its investigations to either party to the conflict, Bensouda’s decision has been subject to harsh criticism. Given that Israel is not party to the ICC, some commentators have argued, the ICC does not have jurisdiction to investigate alleged crimes. Israel and its close ally, the US, – neither signatories to the ICC Statute – oppose the ICC probe. However, the Palestinian Authority has been accepted as an ICC signatory in 2015, a decision that implied recognising that the Palestinian Territories fulfill all functions of a state. On this basis, the ICC has jurisdiction over war crimes committed in the territories occupied by Israel. Both the Palestinian Authority and the Hamas government in the Gaza Strip welcome the investigations.
ICC probe as an “act of antisemitism”?
Much of the current discourse about the ICC investigations in Palestine is influenced by Israel’s reaction. Not only did Israeli Foreign Minister, Gabi Ashekanzi, call the ICC’s move “morally and legally bankrupt”, but Prime Minister Netanyahu also condemned the probe as an attack on Israel. Referring to the origins of the International Criminal Court, established to prevent a repeat of the Holocaust, Netanyahu claims that the institution has now turned against the Jewish state, calling the opening of the investigations “undiluted antisemitism”. This allegation ignores the fact that the ICC will not only probe war crimes committed by the Israeli Army and implies equating the Israeli government with Judaism.
Netanyahu’s claim sparked further media discussions around “victims becoming perpetrators”, referring to Jewish victims of the Holocaust who now might become perpetrators of war crimes. This discussion is again based on a dangerous misconception. Putting in context victims of the extermination of Jewish people during the Holocaust and perpetrators of the Israeli Army is not only inappropriate, but also wrong.
Will the ICC’s investigations have an impact?
Despite these dangerous discussions around the ICC’s investigations, let us consider the possible impact of the probe. One major difficulty Bensouda will face is getting access to the territory to pursue her investigations. It seems unlikely that Israel will cooperate and give free access to the territory. In June 2021, however, Bensouda’s successor as ICC Prosecutor Karim Khan will continue the investigation but will not be beholden to Bensouda’s decisions. His stance will bring Israel’s cooperation up to debate again, depending on which crimes he will lie the focus on.
If, in any case, the ICC Prosecution identifies suspects responsible for war crimes, the judges can issue sealed international arrest warrants to help the authorities arrest those who are charged.
While critics say that the ICC’s involvement will lead to further polarisation around the Israeli-Palestinian conflict, supporters see this as a vital new ingredient in addressing the longstanding conflict and as a chance to bring justice to those who have been denied for too long.