On February 5, 2021, the International Criminal Court’s (ICC) Pre-Trial Chamber I ruled that the court has jurisdiction over the Occupied Palestinian Territories (OPT) and thus can prosecute war crimes committed there. This ruling includes the regions occupied by the Israeli government for decades, most significantly Gaza and the West Bank, including East Jerusalem.
When the ruling was announced, the ICC report underlined that there would be no probing in the near future. While this led many to believe there would be no immediate criminal investigations on regional war crimes, less than a month later, on March 3, chief prosecutor Fatou Bensouda announced that the ICC had opened an investigation regarding potential crimes committed by the Israeli authorities. The investigation involves violations that have been committed within the court’s jurisdiction in the area, dating back to June 13, 2014.
This ruling is historic with many implications on the international stage.
“It’s an unusual decision because from a strictly legal point of view, if Israel was not the target of the decision, it would be treated as rather routine,” said Richard Falk, an international law professor at Princeton University during a seminar hosted by the Institute for Palestine Studies on March 11, 2021.
“It is the first time ICC, since it was established, has shown the institutional courage to investigate the crimes of a leading state that is associated with the West and has the geopolitical patronage of the United States and to some extent the European Union,” said Dr. Falk.
History with Israel
To better understand this ruling, it is crucial to examine the Israeli–Palestinian conflict that has been ongoing since the beginning of the 20th century.
The conflict primarily stems from the control of the land that stretches from the West Bank through the Gaza Strip. The area includes Jerusalem, which is a major point of contention as it is considered the holy city by the Abrahamic religions. While control over these areas is the main point of conflict, disagreement comes from the ownership of the entire modern-day Israeli land.
During the Six-Day War in 1967, the third of the Arab-Israeli wars, Israel took control over the West Bank and the Gaza Strip, creating hundreds of thousands of refugees and bringing more than a million Palestinians under the Israeli regime.
Today, both of these territories are under Israeli occupation, with the Gaza Strip being under blockade for twelve years. Geographically, the West Bank is controlled by Palestinian National Authority, an interim governing body in place to negotiate resolutions to the conflict, and Gaza is controlled by Hamas, an Islamist fundamentalist party.
In the 2020 World Report, Human Rights Watch reported continuous discrimination against the Palestinian population by Israel. There have been numerous international human rights law violations, such as the curtailment of movement of people and goods and the restriction of access to other essential rights such as education, clean water, and electricity. For example, in November 2019, Gaza’s Central Drug Store reported that 46 percent of “essential” medicines were out of stock.
OPT’s status in the Rome Statute
Ever since 2009, Palestinians have been trying to get the ICC to practice jurisdiction over the “acts committed on the territory.”
On April 1, 2015, Palestine was officially added to the Rome Statute as the 123rd state party.
The Rome Statute is the founding treaty of the ICC, which is a permanent tribunal that has the jurisdiction to prosecute individuals for war crimes, genocide, and crimes against humanity.
In January 2015, Palestine acceded to the Rome Statute, meaning it is entitled to the privileges and immunities of the ICC, while also declaring acceptance of ICC jurisdiction since June 2014, granting the ICC the authority to investigate and prosecute crimes committed on Palestinian territory.
On January 16, 2015, ICC prosecutor, Mrs. Fatou Bensouda, then launched a preliminary investigation into the Palestinian situation. The decision was highly controversial as Israel is not a part of the ICC, and the jurisdiction ICC possesses means that the court can only prosecute nationals of any member state.
Crimes committed by Israel in the Occupied Territories are deemed cruel as the reports of the use of lethal force in regions like Gaza still continue on. In 2017, Human Rights Watch listed at least five different types of major human rights violations committed by the Israeli government under international law. These violations included but were not limited to unlawful killings, forced displacement, and abusive detention. One of the most appalling instances pointed out by the organization was the 2,000 Palestinian casualties in just three Gaza conflicts.
Impact of the United States
The United States has been in partnership with Israel for a long time, being the first country to recognize Israel as a state in 1948. The Americans have helped Israel more than any other foreign country, providing them with the most generous financial and military support possible.
The U.S. was also instrumental in the establishment of the Camp David Accords, a series of political agreements leading to a peace treaty between Israel and Egypt. The cease-fire talks were conducted with the United States’ guidance and resulted in the end of the war between the two countries.
In January 2021, the U.S. Bureau of Near Eastern Affairs described the two as “great partners” and stated that “Israel has no greater friend than the United States.”
In contrast, 138 UN members recognize the state of Palestine, such as Russia and Argentina.
On March 3, 2021, a press release was put out by United States Secretary of State, Antony Blinken, where the following was stated: “The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.”
According to Rashid Khalidi, an American historian of the Middle East who sat in the same seminar as Dr. Falk, one of the concerns for this decision of the ICC comes from the possible involvement of American personnel in these investigations. “The U.S. position under the Biden administration remains almost exactly where it was under the Trump administration,” said Khalidi.
Dr. Khalidi continues, “American personnel in situations in third countries or in grey zones, like the Occupied Palestine Territories, may be brought before the ICC for similar violations of international law, war crimes.”
The ICC’s involvement in the conflict could potentially change a few things between the Israelis and the Palestinians.
First is the public image of Israel as an occupier in these territories. The illegality of Israeli settlements in the Palestinian Territories is already widely acknowledged. The settlements are pointed out as one of the main sources of the conflict. As the ICC brings out more facts into the light, Israel may be looking at a bigger condemnation of their status in the dispute.
Another way the ICC can change things is by bringing more attention to the human rights of the Palestinians. Investigating war crimes also means considering the fundamental importance of protecting Palestinians’ life quality. Most of the time war crimes violate rights such as the right to life, no torture or inhumane treatment, the right to democracy, and so on.
This involvement is also expected to further the conversation on the solutions proposed to end the 54-year-old hostility between the two parties. The first popular solution is a one-state solution, an approach that would create a single united, democratic nation that is also secular. On the other hand, many favor a two-state solution, which would necessitate the establishment of two separate nations, Israel and Palestine, with each of them being populated by their own nationals.
While the two parties don’t seem to be completely happy with either solution, the ICC’s involvement might change things. The detailed investigation is expected to drive a bigger wedge between the two states, worsening an already difficult-to-achieve possibility of a one-state solution.
In 2019, Israel’s Attorney General, Dr. Avichai Mandelblit, published a memorandum where he stated that ICC’s Prosecutor had no jurisdiction over any investigations concerning Israel’s suspected war crimes. He maintained that OPT is not a sovereign state, even though many countries recognize it as one. According to Mandelblit, Israel cannot be prosecuted under the Rome Statute, as it is not a member of it.
In 2021, in response to ICC’s most recent ruling, Attorney General Mandelbilt released an almost identical statement, stating that Israel is fully capable of examining alleged violations of the law independently.
“The decision of the International Court to open an investigation against Israel today for war crimes is absurd. It’s undiluted antisemitism and the height of hypocrisy,” said Israel’s Prime Minister, Benjamin Netanyahu, on March 3, 2021.
While the Israeli PM labels this as the ICC being anti-semitic, there are no grounds to prove the Court is doing anything other than simply carrying out international legal procedures.
These statements made by government officials imply that Israel sees this ruling as an investigation launched directly at them. In contrast, the ICC has ruled to have jurisdiction over any and every war crime that has been committed in the Palestinian territories. Moreover, Israel’s opposition may indicate a lack of cooperation in the future. Israeli authorities may block ICC officials from entering the region when the investigation is fully in motion.
Looking ahead, the ICC investigators will now have the chance to investigate crucial events that have occurred in OPT in recent years, such as the 2014 Gaza War and the Great March of Return in 2018-2019, where thousands were killed and injured.
While ICC prosecutor Bensouda announced that she would also be investigating Palestinian armed groups, the Palestinian National Authority has stated that it is still supportive of the investigation. To them, Palestinians will achieve a diplomatic victory with the prosecution of Israeli officials or military figures.
In June 2021, British barrister Karim Khan will replace prosecutor Bensouda, starting his nine-year term. While what positions, opinions, or approaches Khan will take in the investigation still remains a question, what is certain is that the Israeli–Palestinian conflict will continue to evolve over the next few years following the ICC investigation. The ruling is expected to make the tensions rise.