On Feb. 5, 2021, judges at the International Criminal Court ruled that the court has jurisdiction to investigate suspected war crimes in the Palestinian territories since 2014. The decision comes a year after ICC Chief Prosecutor Fatou Bensouda concluded a preliminary probe.
Bensouda determined there was sufficient evidence that war crimes had been committed and were ongoing. But since Palestinian statehood and territorial control are contested, she requested confirmation that her investigation could cover the territories occupied by Israel, the Gaza Strip and the West Bank, including East Jerusalem. The court’s judges answered yes.
Israeli officials and their U.S. allies object and are likely to try to get the court to back down. Our research indicates that the prosecutor won’t be deterred — even with opposition from powerful nations.
The ICC prosecutor examined suspected war crimes in the Palestinian territories
Bensouda began examining possible atrocities in the Palestinian territories following a request from the Palestinian government in 2015. The probe covered allegations against both Israeli and Palestinian forces.
On the Israeli side, she focused on three sets of suspected crimes. The first were attacks on civilian neighborhoods, hospitals and other targets protected under the Geneva Conventions during the 2014 Gaza war. The second were ongoing Israeli settlements in the West Bank. The third covered Israel’s forceful response to Palestinian protests along the Gaza border in 2018.
On the Palestinian side, Bensouda focused on alleged war crimes committed by Hamas and other armed groups during the 2014 war. These include indiscriminate attacks against civilian targets, extrajudicial killings and torture.
The ICC prosecutes crimes only when state authorities prove unwilling or unable to do so themselves, so the prosecutor had to evaluate Israeli and Palestinian judicial capacity and activities. Bensouda noted that the Israeli government views settlements in the West Bank as legal and that the Palestinian government considers itself unable to conduct prosecutions because of Israeli occupation.
In brief, Israel proved unwilling, and the Palestinian government proved unable. On this basis, the prosecutor determined that cases against Israeli and Palestinian personnel would be admissible before the court.
ICC judges ruled that the court has jurisdiction
States can accept ICC jurisdiction via two methods: joining the court’s founding treaty, the Rome Statute, or accepting ICC jurisdiction over specific crimes through a “declaration.” The Palestinian government issued a declaration in 2009 covering atrocity crimes on Palestinian territory from July 2002 onward.
The prosecutor at the time, Luis Moreno Ocampo, opened a preliminary examination but closed it in April 2012. He decided to not move forward because of the status of the Palestinian territories as a “nonmember observer” — rather than a state — at the United Nations. He reasoned that the U.N. would have to resolve the status of the Palestinian territories before the court could have jurisdiction.
In November 2012, the U.N. General Assembly passed a resolution recognizing Palestine as a “nonmember observer state,” giving it the status needed for ICC jurisdiction.
The State of Palestine issued a declaration on Jan. 1, 2015, accepting ICC jurisdiction over the occupied territories from June 13, 2014, onward. The next day, Palestine announced it would join the Rome Statute. And in May 2018, Palestine, now an ICC member, requested an investigation into the conflicts.
These steps would normally establish the ICC’s territorial jurisdiction. However, the Palestinian territories’ borders are contested. Further, the Palestinian government doesn’t fully control all its territories: The Gaza Strip and the West Bank have been under Israeli occupation since 1967, and Israel annexed East Jerusalem in 1980. But in Friday’s decision, the judges declared territories’ ICC membership valid, citing the 2012 U.N. General Assembly resolution, and confirmed jurisdiction.
Israel and the United States react
Israeli officials quickly condemned the decision. Prime Minister Benjamin Netanyahu called it a “perversion of justice” and accused the court of “pure antisemitism.” The Israeli foreign minister argued that it “rewards Palestinian terrorism.”
These responses echo Israel’s long-standing opposition to an ICC investigation. Israel contends that it isn’t subject to ICC jurisdiction because it isn’t a member. But the ICC has jurisdiction over nonmember states if the alleged abuses occurred on the territory of a member state — the Palestinian territories in this case. Israel also maintains that Palestine isn’t a state and is therefore ineligible to be an ICC member. The U.N. and the ICC disagree.
The United States, which has never joined the ICC, is backing its ally Israel. State Department spokesman Ned Price announced the Biden administration’s “serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.” Like Israeli officials, U.S. officials maintain that the court can’t exercise jurisdiction over the nationals of nonmembers.
This is consistent with the position of previous U.S. administrations. In 2020, President Donald Trump ordered sanctions on ICC officials after the court’s judges authorized an investigation into suspected U.S. war crimes in Afghanistan, an ICC member. It’s not yet clear if President Biden will uphold the sanctions.
Israel and the United States don’t want their citizens investigated by the ICC, regardless of the crimes alleged.
The ICC won’t back down
The ICC has been securing convictions, including a verdict last week against Ugandan rebel commander Dominic Ongwen of the Lord’s Resistance Army for war crimes and crimes against humanity. The court is also expanding its geographic reach after years of criticism that it only targeted African nations. Now, it’s standing up to major regional and world powers.
In addition to investigating the United States in Afghanistan and Israel in the Palestinian territories, the court is investigating Russia for suspected atrocities in the 2008 war with Georgia and in the conflict with Ukraine since 2014. Like the United States and Israel, Russia isn’t an ICC member, but Georgia is, and Ukraine accepted ICC jurisdiction.
As the ICC enters its third decade, the prosecutorial team and member countries appear determined to make sure that no country — however big or small — is above the law.
M.P. Broache (@mpbroache) is an assistant professor of political science at the University of North Carolina at Greensboro.
Note: Updated Oct. 2, 2023.