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On February 5, the International Criminal Court (ICC) ruled, for purposes of its jurisdiction, that Palestine is a state. The chief prosecutor who sought this opinion, Fatou Bensouda, is now free to investigate war crimes that may have occurred in the occupied West Bank, including East Jerusalem, and the Gaza Strip. This action removed one more block on the long road for Palestinians to compel international scrutiny of Israel’s actions that violate international law and its war crimes against the Palestinian people. It also underscores and answers the vigorous and—so far—successful attempts by Israel to avoid such scrutiny and to continue to flaunt its ability to do so with apparent impunity.

Perhaps no other people have tried as hard as the Palestinians to achieve redress through the international legal system. In the United Nations, numerous reports and resolutions have established an impressive record of Israel’s wrongdoing, yet efforts to push the Security Council to impose any form of accountability or sanctions under Chapter VII of the UN Charter have been stymied by the ever-present American veto of any such move. The United States has used its veto power 44 times against resolutions concerning Israel, ones that had been approved by other members of the Security Council. Over the years, Israel had grown to expect such vetoes, almost as a matter of right. To be sure, in December 2016 when the Obama Administration abstained from voting on Resolution 2334, which condemned settlements in the occupied territories, Israel went into a panic, with one minister declaring that Obama stabbed Israel in the back.

ICC Creation and Jurisdiction

The history of the ICC begins with the fact that there is universal jurisdiction for any country to try serious war crimes and crimes against humanity. Few countries, however, were willing to use such jurisdiction. The Nuremberg Tribunals of 1945-1946, as well as ad hoc tribunals in the cases of Yugoslavia and Rwanda, were notable exceptions as they seemed to represent justice imposed by the victors over vanquished enemies. The efforts to create a permanent court resulted in the Rome Statute of the International Criminal Court in 1998 that called for the establishment of the ICC. Once 60 countries signed onto the treaty, it took effect in 2002. Over 120 countries eventually joined the statute; however, seven countries––the United States, China, Israel, Qatar, Yemen, Iraq, and Libya––voted against it. Indeed, Washington mounted a vigorous and unsuccessful campaign to prevent the creation of the ICC. In the end, the United States signed a large number of bilateral treaties with all countries that receive any US financial aid or support so they would refrain from bringing any action against it or its citizens before that court. For its part, Israel has no such bilateral agreements with countries, and its citizens are therefore more vulnerable to criminal prosecution before the ICC.

Palestine gained recognition as a non-member state of the United Nations and later actually acceded to the Rome Statute in 2015. Following several years of investigations, ICC Chief Prosecutor Fatou Bensouda announced that there was reason to believe war crimes had been committed by Israel and Hamas during the war on Gaza in 2014. In December 2019, she asked the pretrial chamber of the ICC whether the court had jurisdiction to formally investigate said crimes. A little over a year later, on February 5, 2021, the chamber ruled that the ICC indeed had the required jurisdiction.

It is noteworthy that a coalition of Palestinian human rights organizations had already been active not only in collecting documentation and preparing files on Israeli war crimes and criminals, but also in lobbying the Palestinian Authority itself to take the necessary legal steps. The coalition had also submitted thousands of documents to the ICC to urge it to act without delay.

Israel and the ICC

Israel is particularly vulnerable to action by the ICC primarily for two sets of crimes: the ongoing crime of illegal settlements in the occupied West Bank; and Israel’s war against the Gaza Strip in 2014. In addition, a number of specific actions, including the 2010 attack on the Turkish flotilla carrying humanitarian assistance to Gaza (during which eight activists were killed on the high seas) and the killing of civilians during the March of Return protests in Gaza, have been cited as incidents that warrant prosecution before the ICC.

The crime of settlement seems to be a slam-dunk case as Article 49 of the Geneva Conventions is clear in prohibiting the transfer of civilian population into occupied territories. It specifically states, as a grave breach of the Convention, the following:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive…. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

A 2004 advisory opinion by the International Court of Justice in the Hague, in the case of the separation wall, establishes as a matter of international law that the Geneva Conventions do apply to the occupied territories under Israeli rule. The practice of settlements is an ongoing violation that is well documented. The fact that settlers live under a separate regime from that of the population of the occupied territories further constitutes the crime of apartheid. The statute establishing the ICC specifically mentions apartheid and war crimes as bases for the jurisdiction of the court.

As for the war on Gaza, the evidence that could be used includes the Goldstone Commission Report that documented war crimes committed by Israel during the 2008-2009 attack on Gaza during Operation Cast Lead. While the commission’s president, Judge Richard Goldstone, later retracted some elements of the report, the evidence of criminal actions by a UN fact-finding mission was clear and compelling and could be employed in a case before the ICC. That and Palestinian human rights organizations’ collection of further evidence against specific Israeli individuals, civilian and military, for their role in human rights violations could be utilized to show criminal responsibility for war crimes.

The Israeli approach has so far been to prevent, at all costs, any substantive examination of Israel’s actions before any international tribunal, and instead to create procedural blocks to avoid any discussion of the merits. Therefore, Israel started by insisting that the ICC has no jurisdiction because it can only hear actions brought by states that have signed the Rome Statute, or that voluntarily accept its jurisdiction. This was cited as the primary reason why Israel pressured countries not to recognize Palestine as a state and to treat all attempts by the Palestinian Authority to declare statehood, or join UN organizations, as violations of the Oslo Accords and as hostile actions.

Mahmoud Abbas was also pressured by Israel and the United States not to join the ICC and not bring any action against Israel. In fact, Washington passed legislation to cut off all aid to the Palestinians specifically to deter them from bringing action before the ICC.

During the Trump Administration, the United States considered itself and Israel primary targets of the ICC. It also assumed the role of protector of Israel and sought to pressure and attack the ICC and its personnel and actually imposed sanctions. It issued orders to freeze assets and deny visas to judges and prosecutors to prevent them from entering the United States, and even threatened to bring legal action against them for performing their duties. Indeed, any individual taking part in investigating or prosecuting the United States or Israel was to be targeted by sanctions. Israel also sent a memo to all its diplomatic missions to pressure their host countries to join the effort to demonize the ICC and prevent it from investigating Israel’s crimes. Israel claimed that the ICC was politically motivated and was unfairly singling Israel out. Israeli Prime Minister Benyamin Netanyahu further denounced the ICC as political and anti-Semitic and issued additional threats against it. At the same time, Israel is reported to have already prepared a secret list of hundreds of its military and political leaders and was advising them how to act in case subpoenas or warrants for their arrest were issued, or if they were actually arrested.

In addition to mounting such political pressure, Israel was also advised to take advantage of another feature of the jurisdiction of the court. The ICC has only “complementary jurisdiction,” which means it can prosecute only in cases for which the local national courts are either unwilling or unable to try the suspected war criminals. Israel has therefore intentionally announced investigations of the most blatant crimes that had international visibility. An example is its investigation into the 2014 killing of four boys who were playing soccer on the beach in Gaza. The event took place before the eyes of international journalists who were at the beach hotel and reported it widely. In that case, the investigation predictably exonerated the Israeli army, with the latter’s spokesman saying that the strike that killed the children was directed against a compound belonging to Hamas.

It is important to point out that the decision by the ICC to investigate Israeli crimes in Palestine may also be contingent on how the court’s incoming chief prosecutor, Karim Khan, pursues the matter. He was chosen by secret ballot from a list of four candidates just a week after the court announced its decision. He takes up the nine-year position in June. It has been reported that Israel and the United States see his selection as a positive step, perhaps because he is a British national, which opens the case up to several possibilities.

As the ICC investigation into Israeli actions moves forward, it is hoped that justice may be served. Israel continues to place obstacles to any international scrutiny into its behavior and policies while the Palestinians work to remove these roadblocks. What is of utmost importance is that the impending investigation and criminal prosecution before the ICC may have the effect of ameliorating the actions of the Israeli army and politicians as they contemplate the fact that one day they may be brought to justice.

[Jonathan Kuttab is a leading human rights lawyer and a Non-resident Fellow at Arab Center Washington DC. To learn more about Jonathan and read his previous publications click here.]