Will the ICC finally do the job?

The International Criminal Court (ICC) in The Hague met with very contradictory reactions with its decision published last Friday evening to open proceedings on alleged crimes in the Palestinian territories occupied by Israel since 1967. “This decision opens a long-awaited path to justice for Israeli and Palestinian victims of serious crimes,” said the international human rights organisation Human Rights Watch (HRW) in welcoming the ICC decision. The Palestinian Authority said the decision opened “a door for the prosecution of serious crimes that have been committed against the Palestinian people for a long time.” On the other hand , Israeli Foreign Minister Gabi Ashkenazi said that the decision distorted international law and made “the Criminal Court a tool of anti-Israel propaganda.”

Contrary to what these two reactions of the parties to the conflict suggest, the trials sought by ICC chief Prosecutor Fatou Bensouda since 2015 deal with “alleged war crimes and crimes against humanity by Israeli security agencies and armed forces, by Hamas, the PA and by armed Palestinian groups in the occupied territories of the West Bank, Gaza Strip and East Jerusalem.”

In January 2015, Palestine, which has been a “non-member observer state” at the UN since 2012, acceded to the ICC and requested a preliminary investigation into alleged crimes in the Occupied territories. As a result of this preliminary investigation, the chief prosecutor stated in December 2019 that “all the conditions required by the Statute of the ICC Statute for the opening of proceedings are fulfilled”. The opening of ICC proceedings is “permissible” because the local or state courts are “unwilling or unable” to carry out proceedings. However, the chief prosecutor handed over the" highly controversial question “of whether the three occupied territories also fall under the territorial jurisdiction of the ICC to a three-member pre-trial chamber of the Court of Justice with the request for a"rapid investigation and decision”.

The pre-trial chamber ruled last week that the territorial jurisdiction of the court is given. In addition to the Israeli government, the Biden administration in Washington continues to deny this. The ICC’s jurisdiction should be" limited to countries that have joined it or have been referred to The Hague by the UN Security Council for investigation, " said a spokesman for the US State Department. The United States, like Israel, has not yet joined the ICC. A referral by the Security Council to the ICC with regard to the occupied Palestinian territories would fail because of the US veto.

Human Rights Watch expects the ICC to begin investigating numerous crimes so far documented by HRW itself, Amnesty International, the Goldstone Commission and other UN investigative bodies very soon. Specifically, HRW cites alleged war crimes and crimes against humanity committed by both sides in the 2009 and 2014 Gaza wars, Hamas rocket fire on Israeli territory, Hamas torture crimes, and Israeli government measures to expand illegal settlements.