Violations of international humanitarian law and human rights by Israel in Gaza have been documented in numerous reports by organisations affiliated to the UN as well as independent human rights groups. The International Criminal Court is the authoritative body to investigate possible crimes by Israel and hold the culpable parties accountable. What is its mandate?
By Dr Deblina Majumder and Manisha Band
Palestinians and their supporters have long desired to see their grievances heard by an international tribunal, and initially greeted the establishment of the International Criminal Court (ICC) with optimism. Many of the offences falling under its jurisdiction clearly pertain to the Palestinian situation. For instance, the settlement of Israeli civilians in the occupied Palestinian territories is unequivocally within the ICC’s purview. Moreover, in a legal proceeding regarding Israel’s separation wall, the International Court of Justice (ICJ) has confirmed the relevance of the Geneva Conventions to these regions. Even so, there are significant reservations regarding Palestinians’ ability to attain justice through the ICC, which has primarily focused on prosecuting African and developing countries and appears reluctant to address potential crimes by Israel. Israel, in turn, has declined to ratify the Rome Convention to become a member of the ICC, leveraging its influence—and that of the United States—to obstruct or postpone any serious consideration of the allegations against it. Israel’s consistent strategy continues to involve employing procedural manoeuvres to evade substantive discussions on Palestinian claims and disclaiming the Court’s jurisdiction over the state of Israel or its citizens.
The role of the ICC in Palestine and Israel is complex and contentious due to the ongoing Israeli-Palestinian conflict and the legal and political challenges surrounding it. The ICC’s authority regarding crimes occurring in the Palestinian territories, encompassing the West Bank, East Jerusalem and Gaza Strip, has sparked considerable debate. In 2015, the ICC’s Office of the Prosecutor initiated a preliminary inquiry into reported instances of war crimes and crimes against humanity within the area. This examination scrutinised actions undertaken by both Israeli forces and Palestinian armed groups.
The ICC has been presented with accusations of significant breaches of international humanitarian law and human rights law attributed to Israeli forces. These allegations pertain to events, such as military operations in Gaza and the establishment of Israeli settlements in the West Bank. Among the allegations are claims of unlawful killings, indiscriminate assaults on civilians, and the compelled displacement of Palestinian communities. The ICC has also received allegations of crimes committed by Palestinian armed groups, including rocket attacks targeting Israeli civilian populations and the use of civilians as human shields.
The ICC’s involvement in the Israeli-Palestinian conflict has faced numerous challenges and obstacles. Israel, which is not a party to the Rome Statute (the treaty that established the ICC), has questioned the Court’s jurisdiction over the situation and has refused to cooperate with its investigations. Additionally, the United States, a close ally of Israel, has opposed the ICC’s involvement in the region and has taken measures to impede its work.
Despite these challenges, the ICC’s Office of the Prosecutor has continued its preliminary examination and has sought to gather evidence and assess the admissibility of potential cases. The Court’s decisions regarding the admissibility of cases and the issuance of arrest warrants or summonses will depend on its legal analysis and the availability of evidence. The ICC’s involvement in Palestine and Israel mirrors the intricate nature and obstacles involved in holding individuals accountable for grave offenses within the backdrop of prolonged conflicts and deeply entrenched political rifts.
Meanwhile, hearings also opened last week at the United Nations’ top court—the ICJ—into the legality of Israel’s 57-year occupation of lands meant for a Palestinian state. The case comes against the backdrop of the Israel-Hamas war. This is the second time that the UN General Assembly has asked the ICJ, also known as the World Court, for an advisory opinion related to the occupied Palestinian territory. In July 2004, the ICJ found that Israel’s separation wall in the West Bank violated international law and should be dismantled, though it still stands to this day. The General Assembly also asked the ICJ’s 15-judge panel to advise on how those policies and practices “affect the legal status of the occupation” and what legal consequences arise for all countries and the United Nations from this status.
The advisory opinion proceedings are separate from the genocide case that South Africa filed at the World Court against Israel for its alleged violations in Gaza of the 1948 Genocide Convention. In late January, the ICJ in that case ordered Israel to do everything in its power to prevent acts of genocide in Gaza. The outcome of the advisory opinion would not be legally binding, but would carry “great legal weight and moral authority”, according to the ICJ.
The ICJ and the ICC are both headquartered in The Hague. The ICJ, also called the World Court, is the only international court that adjudicates general disputes between nations and gives advisory opinions on international legal issues. The ICC, operational since 2002, exclusively tries living persons, including heads of state and high-ranking government officials. While 18 judges are elected for a term of nine years to the ICC, the expenses of the ICC are covered by contributions from member countries and donations from third countries. The Rome Statute specifies four crimes that the ICC can prosecute—genocide, crimes against humanity, war crimes and crimes of aggression. Any crime outside the four categories is not within the jurisdiction of the ICC.
In the past, the ICC had issued a judgment for the conviction of Thomas Lubanga Dyilo as a convicted war criminal from the Democratic Republic of the Congo and the first person ever convicted by the International Criminal Court. He was accused of using child soldiers. The ICC also convicted Ahmad al-Faqi al-Mahdi, a member of Ansar Dine, a Tuareg Islamist militia in Mali in North Africa. Al-Mahdi admitted guilt in the International Criminal Court in 2016 for the war crime of attacking religious and historical buildings.
However, the ICC also faces handicaps over issues of sovereignty, namely that the ICC should complement and not replace domestic legal systems. It has also been accused of disproportionally targeting African countries—almost all ICC trials so far have been against people belonging to an African country. Critics also say that the ICC’s expanding scope of settled concepts in international law by way of interpretation negates the development of international law so far.
—Dr Deblina Majumder and Manisha Band are Assistant Professors at School of Law, SVKM’s NMIMS, Navi Mumbai