Is the Hague Finally About to Challenge Israeli Impunity?

For seven decades, the Palestinian people have been denied the exercise of their inalienable rights. Since the Nakba (“catastrophe”) of 1948, millions of Palestinians have been illegally dispossessed from their lands and denied their right of return.

Key to prolonging Palestinian oppression has been Israel’s institutionalised impunity for its widespread and systematic human rights violations. This lack of legal consequences has not only shielded perpetrators from accountability, it has facilitated the ongoing perpetration of serious crimes against Palestinians.

This may be about to change. On 5 February, the International Criminal Court’s (ICC) Pre-Trial Chamber I ruled that it has jurisdiction throughout the occupied Palestinian territory, clearing the way for the ICC’s chief prosecutor to investigate suspected crimes committed in Palestine.

What’s the backstory?

Palestine’s journey at the ICC goes back to 2009, when Palestinian officials first made a declaration submitting the occupied Palestinian territory to the court’s jurisdiction. This declaration followed Israel’s large-scale military offensive in the Gaza Strip in late 2008 and early 2009, which killed 1,409 Palestinians (including 1,172 civilians, 342 of them children). Yet the declaration was rejected by the ICC in April 2012, on the basis that Palestine was not recognised as a state by the United Nations (UN). The ICC’s Office of the Prosecutor nevertheless held that it “could in the future consider allegations of crimes committed in Palestine” following a determination of Palestinian statehood by the UN.

On 29 November 2012, Palestine was admitted to the UN General Assembly as a “non-Member observer State.” It then signed a series of international treaties including, in January 2015, the ICC’s Rome Statute, which establishes four core international crimes: aggression, war crimes, crimes against humanity and genocide. Palestine thereby accepted the ICC’s jurisdiction over suspected crimes committed in the occupied Palestinian territory since 13 June 2014. This retroactive scope covered Operation Protective Edge, Israel’s massive military assault on Palestinians in the Gaza Strip in 2014 that killed 2,215 Palestinians, 1,639 of them civilians, including 556 children.

For the next five years, the ICC’s chief prosecutor Fatou Bensouda would carry out a preliminary examination into the Situation in Palestine (as it is referred to by the court), seeking to determine whether the court could investigate suspected perpetrators in Palestine under the Rome Statute. During that time, she received thousands of submissions, including from Palestinian human rights organisations, to help her make that decision.

On 20 December 2019, Bensouda concluded her preliminary examination. The prosecutor was satisfied that the court’s territorial jurisdiction extends to the Gaza Strip and West Bank, including East Jerusalem, where she found that crimes under the Rome Statute “have been or are being committed.”

Bensouda then decided to request a ruling from the ICC’s Pre-Trial Chamber I to confirm the court’s territorial jurisdiction in Palestine, seeking to grant “greater clarity and reinforced legitimacy” to a future investigation given what she called the “unique and highly contested legal and factual issues attaching to this situation.”

Last Friday, the International Criminal Court ruled that its jurisdiction applies to the oPT, enabling investigation of Israelis suspected of committing war crimes. Hopefully, the ICC’s ruling will restrain Israel and deter it from the continued implementation of this policy.

— B'Tselem בצלם بتسيلم (@btselem) February 10, 2021

What did the chamber decide?

On 5 February 2021, a year after Bensouda’s request, the chamber reached the same conclusion as she had: that the ICC’s territorial jurisdiction extends to the entirety of the occupied Palestinian territory.

In reaching this conclusion, the chamber relied on Palestine’s non-member observer state status at the UN General Assembly, granted in 2012, and its accession to the ICC’s Rome Statute in 2015.

While the chamber said it was beyond its mandate to rule on matters of statehood and that its decision did not pre-empt a political outcome, it reaffirmed that for the purposes of criminal jurisdiction, Palestine is an ICC state party.

What happens now?

The chamber’s decision highlights the legal obligation of the ICC prosecutor – whether Bensouda or her successor Karim Khan, who will replace her on 16 June – to initiate an investigation into the Situation in Palestine.

Bensouda has already stated she has reason to believe that members of the Israeli military and occupying authorities, Hamas, as well as Palestinian armed groups may have committed crimes under the Rome Statute. An ICC investigation would look into individual perpetrators of suspected war crimes and crimes against humanity – including the crimes of population transfer, destruction of property, wilful killing, torture and apartheid – committed in the occupied Palestinian territory since 13 June 2014.

Following its investigation, which is likely to be lengthy, it is hoped that the ICC will issue arrest warrants for suspected perpetrators, who may be put on trial.

The ICC probe into Israel/Palestine is pretty much the only leverage at the moment against the consolidation of the a permanent one unequal state. It can’t stop the tide, but it points to consequences of occupation/colonisation.

— Yair Wallach (@YairWallach) February 10, 2021

Is it as simple as that?

Not exactly. The chamber’s recent decision comes amidst continued attacks on the ICC. Last year, the Trump administration issued an executive order imposing sanctions on Bensouda and another senior ICC official in an effort to deter the court from investigating suspected crimes committed by United States (US) and Israeli officials in Afghanistan and Palestine.

Israel has responded to the latest decision by attacking the legitimacy of the ICC as politically motivated, something the court has rejected. In a factsheet, the ICC reaffirmed that the court is “independent and impartial” and explained that the chamber’s decision is of a legal rather than a political nature.

The new prosecutor Karim Khan is likely to face similar political pressure in pursuing his mandate, which hinges on state cooperation. In its latest ruling, the ICC anticipated potential challenges in carrying out arrest warrants and summons to appear before the ICC in Palestine. Notably, the Oslo Accords impede the Palestinian Authority’s ability to deliver Israeli suspects.

At the same time, the ICC’s jurisdiction in Palestine is limited to crimes committed since 13 June 2014. It therefore does not provide an avenue to challenge all crimes committed against the Palestinian people before that date, and since the Nakba of 1948. That said, certain crimes committed against Palestinians since before 2014, such as population transfer and apartheid, are ongoing, and may therefore be prosecuted.

The court’s jurisdiction is also geographically limited to the occupied Palestinian territory and so cannot challenge the regime of oppression Palestinians face on both sides of the Green Line, a system increasingly recognised as apartheid. Nevertheless, it remains essential for the ICC prosecutor to investigate the crime of apartheid in Palestine and to consider the institutionalised oppression of the Palestinian people as a whole. It is also hoped that the ICC will examine the continued denial of the right of return of Palestinians as a crime under the Rome Statute.

So your “legal view” supersedes the ruling of the ICC judges & the resolutions of the UNGA? No self-respecting state should accept instructions from (or intimidation by) Israel. #IsraeliCrimes must be investigated & judicial #accountability must be respected.

— Hanan Ashrawi (@DrHananAshrawi) February 9, 2021

Does this mean Israeli officials will be prosecuted?

We will have to wait and see. Over the years, repeated attempts have been made to try high-level Israeli civilian and military officials accused of war crimes and crimes against humanity committed against Palestinians, but to no avail. Under the Geneva Conventions, all states have an obligation to prosecute serious breaches of international humanitarian law in their own courts as part of the principle of universal jurisdiction.

Yet only a few states have actually attempted to try perpetrators of crimes committed against the Palestinian people in their courts. In 2003, a prominent Belgian case against then Israeli prime minister Ariel Sharon for his involvement in the 1982 Sabra and Shatila massacres failed following political pressure from the US and Israel. Not only did Belgium drop the case against Sharon, it even changed its laws to prevent similar prosecutions in the future.

Similarly, the UN has established ten investigatory bodies on Palestine since 2000. Their various inquiries and fact-finding missions have repeatedly found grounds to believe that international crimes have been committed against Palestinians. Their recommendations remain unimplemented, and suspected perpetrators are yet to be held accountable.

In response to the recent ICC decision, the UN special rapporteur on Palestine Professor Michael Lynk stated: “Had international legal obligations been purposively enforced years ago, the occupation and the conflict would have been justly resolved and there would have been no need for the ICC process.”

The @ICC prosecutor’s decision should be welcomed, but there’s no certainty that Gaza cases will be deemed admissible. Israel will undoubtedly be turning the screws. The international community must be vocal in supporting the investigation & inclusion of Gaza cases @Gisha_Access https://t.co/cuit1q8Z3r

— Beth Oppenheim (@BethOppenheim) February 10, 2021

What does this mean for Palestinians?

An ICC investigation into the Situation in Palestine has the potential to challenge decades of Israeli impunity and in this context, carries important symbolic significance for Palestinian victims.

While it is true that the ICC’s ability to address the root causes of Palestinian oppression remains limited, the ICC is not the only avenue at Palestinians’ disposal. The pursuit of universal jurisdiction and the adoption by third states of effective coercive measures such as sanctions, will remain equally important to challenging Israeli impunity in the months and years to come.

Rania Muhareb is a Hardiman PhD Scholar at the Irish Centre for Human Rights in Galway. She is a consultant for Al-Haq, and a policy member of Al-Shabaka.