Israel on Trial: The ICC's War Crime Investigation into the Gaza Conflict
Updated: Dec 21, 2021
On March 2nd, 2021, the International Criminal Court (ICC) formally announced that it would be holding a war crimes probe to investigate the actions of both the Israeli and Palestinian leaderships.
This piece explores this new development, first considering what the ICC is, what case is being brought for investigation, and then discussing the responses of both states’ governments. The piece will conclude by considering what potential next steps will be taken.
What is the International Criminal Court?
The International Criminal Court (ICC), based in The Hague (Netherlands), was established by the Rome Statute of 2002 with an aim to prosecute those responsible for the major crimes of genocide, crimes against humanity, war crimes and crimes of aggression.
The Court aims to both hold those committing these crimes accountable for their actions, as well as prevent such atrocities from occurring again. The Court does not replace national criminal courts, but is instead a court of last resort seeking to complement them. Rather than trying states, the Court tries leaders and/or warlords who give orders to commit these atrocities. Even presidents are not exempt from being called to trial – Kosovo’s president was held at the Hague for possible war crimes in 2020.
The ICC has been ratified in 118 countries i.e. these countries have given formal consent to use the ICC in their states. This means that the ICC can only hold investigations where the above crimes are committed: on the territory of a ratified state, by a citizen of a ratified state, or when the case is referred by the United Nations Security Council (UNSC). States, once ratified, are bound to co-operate with the court. As the ICC does not have its own enforcement methods, countries provide support by making arrests and transferring people to the ICC detention centre in the Hague. Whilst the ICC is not a part of the UN, a cooperation agreement exists whereby the UNSC will grant the Court permission to rule on a case for a country not within its jurisdiction.
Notably, Israel is not a signatory to this Statute, and thus in theory the ICC has no authority to investigate any of the above crimes in relation to the country. However, Palestine ratified the Statute in 2015 and is a state party to the ICC, and thus the Court does have jurisdiction to consider cases in Palestinian territory.
For more information on the ICC Legal Process, see here.
What case is being brought to the ICC?
The Chief Prosecutor at the ICC, Fatou Bensouda, announced in March that a formal investigation will be conducted into the alleged war crimes committed by Israel in Palestine, as well as the war crimes committed by Palestinian militant groups such as Hamas. Events from June 13, 2014 onwards will be investigated, with a focus on the Gaza war between Israel and Hamas in summer 2014, the 2018 hostilities along the Gaza fence, and Israel’s forced settlement activities in the West Bank. Bensouda said the review would be ‘conducted independently, impartially, and objectively’ and noted the overall aim is to address the ‘long cycle of violence and insecurity that has caused deep suffering and despair on all sides’.
The investigation aims to address the "long cycle of violence and insecurity"
This all comes after the State of Palestine made a referral to the ICC in May 2018 requesting an immediate investigation into the past, ongoing and possible future conflict within the Occupied Palestinian Territory (OPT). The request clarified this area as being: ‘the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem, and the Gaza Strip.’ In December 2019, the ICC Prosecutor ruled that the statutory criteria listed in the Rome Statute to open an investigation had been met, and thus an investigation could be undertaken. In February 2021, the ICC ruled then ruled that it did have jurisdiction to investigate war crimes in the OPT, and thus could also bring to court actors from Israel for potential involvement, despite Israel not being a signatory state to the ICC.
The formal announcement was made in March. Many international states were in disagreement after Palestine’s 2018 referral as to whether the State had defined boarders, and thus were not in support of the ICC opening an investigation into alleged war crimes.
On April 9th, Israel formally rejected the ICC’s decision to investigate alleged war crimes in the OPT and denied accusations levied against them. The state also declared the ICC was biased against Israel and firmly rejected the Court’s jurisdiction – or in Israel’s opinion, the lack thereof - to investigate in the intended areas. The state also declared that they had their own robust judicial process which would be resorted to for any allegations of wrongdoing, in accordance with the rule of law.
Netanyahu in his statement declared that the ICC was not protecting human rights, but rather protecting ‘those who trample on human rights’ – referring to militant groups such as Hamas, despite the fact that the ICC will also be investigating these groups along with Israel. He also declared that Israel was ‘under attack’ and being punished for defending citizens from terrorist threats, following the March decision to open an investigation into the alleged war crimes. He stated: “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.”
For a detailed guide on anti-Semitism, see here.
Israel PM Benjamin Netanyahu: "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"
Interestingly, Israel also rejected the opinion that Palestine was a state or had defined boarders. Although the ICC concluded in February that the West Bank and Gaza are considered occupied territories of Palestine and declared there is jurisdiction to investigate as Palestine is a state party to the ICC, there has been ongoing dispute over which territories belong to which states for decades.
The ICC’s declaration did not end these disputes. Israel believes firmly that the areas the ICC will investigate are not Palestinian land and therefore holds that the ICC does not have any jurisdiction to hold investigations in any areas.
In the 1967 war, Israel captured the West Bank, East Jerusalem, and Gaza territories from Palestine. In 2005 the state withdrew from Gaza, and Hamas took control after two years. Many international states view the West Bank and East Jerusalem as ‘occupied territories’ with their final determination needing to be considered through peaceful talks (none have occurred for over a decade). Israel on the other hand considers the entirety of Jerusalem as its capital, and the West Bank as the historical, religiously significant land for the Jewish people. The state believes that as no final status has been determined, and that no fixed or definite Palestinian territory exists in the areas the ICC will investigate. Israel also believes that due to this, the Palestinian Authority is not in a position of sovereignty to delegate jurisdiction and request intervention from the ICC, as is required by the Rome Statute.
On the other hand, Palestine has welcomed the ICC’s decision to open an investigation into the alleged war crimes. In a ministry statement, they stated that the investigation was ‘a long-awaited step that serves Palestine's tireless pursuit of justice and accountability, which are indispensable pillars of the peace the Palestinian people seek and deserve’. The state has also promised full cooperation with the court to both ‘achieve justice for the victims of the Palestinian people and hold Israel accountable for its crimes’, stated Omar Awadallah, a senior official in the Palestinian Foreign Ministry. Palestine believes this to be an opportunity to hold Israel to account for what they say has been a serious and long-standing violation of international law. Others in support of the investigation echoing these statements include Amnesty International, with the head of its Justice Department, Matthew Cannock stating it to be ‘a momentous breakthrough for justice after decades of non-accountability for war crimes and crimes against humanity’.
Matthew Cannock, Amnesty International: "a momentous breakthrough for justice after decades of non-accountability for war crimes and crimes against humanity"
A spokesperson for Hamas, Hazem Qassem, has condemned Israel’s refusal to cooperate with the investigation, stating they felt that ‘Israel acts as if it is above the law, and it doesn't comply itself with the scope of accountability’. The groups have also welcomed the investigation, even though the actions of its forces will be investigated alongside the actions of Israel. Despite the positive reception the group, like Israel, will not enter a guilty plea if and when a trial takes place.
Palestinian human rights organisations now hope that the investigation will begin soon. Many of these organisations have been documenting war crimes during the 2014 Gaza conflict, and hope that these materials will be of benefit to the Court. Issam Younis, director of the Gaza-based Al-Mezan Centre for Human Rights noted that the decision by the ICC to hold an investigation was one that Palestinians had long awaited and considered the Court to be the State’s ‘last resort’. Shawan Jabareen, president of Al-Haqq Foundation noted that there was an underlying fear that the UNSC may attempt to halt the investigation in the wake of international pressure.
The Court will begin the process of gathering evidence for all the cases and the Court will eventually issue relevant subpoenas and arrest warrants for suspects. It is expected that senior military and government figures may be called to give evidence. The investigation and subsequent trial will not be conducted for months, however. It is expected to last years, with Bensouda noting that the process will have an added complexity given that it will begin amidst a global pandemic.
There is currently 7 years’ worth of evidence to examine before any trial can be conducted, and there will be added duration to the trial if Israel and Hamas enter not guilty pleas. In addition, Bensouda’s term as Chief Prosecutor will end in June, with British prosecutor Karim Khan as the new appointee succeeding her. This may also cause delays.
When the trial does begin, the prosecution will be required to prove ‘beyond all reasonable doubt’ that a war crime was committed. If this is not proved, the defendants will be released. Given that we are currently at the very beginnings of this major international case, it will be interesting to see the potential outcomes arising, as well as see how this case may be a catalyst for others to come.
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