Can ICC help?

On 17 November, five countries (South Africa, Bangladesh, Bolivia, Comoros and Djibouti) called for an International Criminal Court investigation into the situation in Palestine, according to International Criminal Court (ICC) Chief Prosecutor Karim A A Khan KC. 

ICC is understood as a court of last resort — an international body which prosecutes individuals for alleged criminal conduct when its 124 member states are unwilling or unable to prosecute themselves. 

The State of Palestine has been a state party to the ICC since 2015.

Earlier, on 8 November, three Palestinian rights groups filed a lawsuit with the ICC, urging the body to investigate Israel for "apartheid" as well as "genocide" and issue arrest warrants for Israeli leaders.

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group, according to the United Nations Office on Genocide Prevention and the Responsibility to Protect. 

In the case of the ongoing attack on Palestine perpetrated by the Israeli government, "the intent is clear," Noura Erakat, a human rights lawyer and Associate Professor at Rutgers University in the Department of Africana Studies and in the Program in Criminal Justice, told Al Jazeera and Democracy Now earlier in October. 

After Hamas, a militant Palestinian group committed a terrorist attack targeting civilians in south Israel by killing around 1,200 Israelis and taking over 200 people as hostages — Israeli Prime Minister Benjamin Netanyahu and top government officials vowed "unprecedented" retaliation. 

"I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals, and we act accordingly," Israeli Defense Minister Yoav Gallant said in the aftermath of the attack.

Gallant then went on to order and carry out a complete siege of the North Gaza enclave, which housed 1.1 million people, half of them children. A siege by cutting off food, water and electricity — this is defined as collective punishment, which is considered a war crime. Collective punishment is prohibited in international law and is one of the fundamental guarantees established by the Geneva Conventions and their protocols.  

"We have only started striking Hamas," Israeli Prime Minister Benjamin Netanyahu said in a nationally televised address in response to the 7 October attack. "What we will do to our enemies in the coming days will reverberate with them for generations."

Netanyahu also said, "We are at war, not an operation. Hamas has launched a murderous surprise attack against the State of Israel and its citizens. I ordered first of all to cleanse the settlements of the terrorists who had infiltrated and ordered a large-scale mobilisation of reserves. The enemy will pay a price they have never known."

And they continue to live up to their words. 

On 20 October 2023, Amnesty International said it has documented "unlawful Israeli attacks, including indiscriminate attacks, which caused mass civilian casualties and must be investigated as war crimes" and pointed to "damning evidence of war crimes as Israeli air strikes wipe out entire families in Gaza."

Indiscriminate killings of civilians is a war crime according to the Geneva Conventions Additional Protocol I (1977) and by customary international humanitarian law. At least 12,000 people have been killed in Israeli attacks on Gaza from 7 October to 18 November, according to Al Jazeera. 

Article 8 of the Rome Statute, which established the International Criminal Court in The Hague, defines a long list of war crimes including intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected.

As of 6 November, more than 41,000 housing units in Gaza had been destroyed and over 222,000 others partially damaged, according to the Gaza Ministry of Public Works and Housing. More than 51% of educational institutions have been hit. 

Palestinian officials said Israel launched airstrikes on or near four hospitals and a school on 3 November. WHO also said earlier this month that Gaza's largest hospital Al-Shifa was being bombarded and civilians were forced to evacuate. This was followed by a raid of the hospital on 16 November.   

Israeli strikes have also hit refugee camps, mosques and schools sheltering civilians killing scores of people. 

ICC's response 

The ICC Chief prosecutor said, on receiving the referral from five countries, "my Office confirms that it is presently conducting an investigation into the Situation in the State of Palestine…  In accordance with the Rome Statute, my Office has jurisdiction over crimes committed on the territory of a State Party and with respect to the nationals of States Parties."

The prosecutor is referring to an investigation into war crimes committed by Israel from years ago. The international court, which was established in 2002, officially launched an investigation into war crimes committed by Israelis and Palestinians in the State of Palestine in 2021.  

"This investigation, commenced on 3 March 2021, encompasses conduct that may amount to Rome Statute crimes committed since 13 June 2014 in Gaza and the West Bank, including East Jerusalem. It is ongoing and extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023," reads the statement from the chief prosecutor on the ICC website. 

The 2021 ICC investigation will mainly focus on the 2014 Gaza war – which killed 2,251 Palestinians, including 1,462 civilians, according to the UN. This was the result of a military operation launched by Israel, also known as Operation Protective Edge, in retaliation to Hamas rockets targeting Israel. 66 Israeli soldiers and five civilians, including one child, were also killed, according to UNWRA. 

The 2021 ICC investigation was launched to mainly look into war crimes committed during the 2014 Gaza war "but also look at the deaths of Palestinian demonstrators from 2018 onwards," Fatou Bensouda, the chief ICC prosecutor at the time said. 

In April 2021, when Israel received a letter from the ICC about its imminent investigation, Prime Minister Benjamin Netanyahu expressed outrage. In a letter issued to the ICC, Netyanhu wrote "completely rejecting the claim that Israel commits war crimes" and reiterated Israel's unequivocal position that The Hague tribunal has no authority to open an investigation against it. 

Netanyahu also said, "It's [the ICC's decision] undiluted antisemitism and the height of hypocrisy."

Israel is not a member state of the ICC, so isn't the United States, which also expressed its discontent over the ICC 2021 investigation launched into possible war crimes committed by Israel. 

Netanyahu also said, "The ICC reached a decision which is the essence of anti-Semitism," in a video posted on Twitter.

How effective is ICC?

"The international criminal court has delivered the first verdict in its 10-year history, finding a Congolese warlord Thomas Lubanga guilty of recruiting child soldiers," reported The Guardian in 2012, "Backed by 120 countries – but neither China nor the US – the ICC has launched investigations in seven conflict regions, all of them African, since it opened." 

In 2016, the former Congolese vice-president, Jean-Pierre Bemba, was found guilty in the first trial at the International Criminal Court (ICC) to focus on the use of sexual violence as a weapon of war, reported The Guardian. 

There was also Ahmad Al Faqi Al Mahdi, a member of a militia in Mali, convicted of war crimes mainly of cultural property destruction by the ICC in 2016. 

Dominic Ongwen, a former commander of the Lord's Resistance Army (LRA), faced charges of war crimes and crimes against humanity, including enslavement, murder, and sexual slavery. His trial concluded in 2021, and the verdict is pending.

In the case of ongoing ICC cases – two of the major instances are the Rohingya genocide perpetrated by the Myanmar junta in 2017 and the war crimes committed by Russia against Ukrainians. 

The court sent a team of 42 investigators, forensic experts, and support staff to probe alleged war crimes in Ukraine, its "largest ever." After 43 state parties referred the Ukraine situation to the ICC, Khan also successfully leveraged external support: 45 countries pledged Ukraine-specific funding, coordination, and forensic technology.

The fast-paced immediate response to Ukraine from the ICC was also unprecedented. By the first week of March 2022, the ICC said it would look into "past and present allegations of war crimes, crimes against humanity or genocide" committed by Russia. The Office also stated that it has a reasonable basis that crimes have been committed in late February 2022. 

Russia launched its invasion on 24 February 2022. 

This dwarfs the ICC's investigation efforts into the Rohingya genocide. "Within less than 18 months of the opening of the investigation in Ukraine, the ICC was able to open a field office there, and there is already an arrest warrant. In contrast, nearly four years into the investigation in the Rohingya genocide case, there is no arrest warrant; there is not even a field office opened in Bangladesh," wrote academic C R Abrar and academic activist  Rezaur Rahman Lenin in The Daily Star. 

In the case of Palestine, "Upon the commencement of my mandate in June 2021, I put in place for the first time a dedicated team to advance the investigation in relation to the Situation in the State of Palestine," wrote the ICC chief prosecutor on 17 November 2023. 

"As I stated in my recent visit to Rafah Crossing [Karim A A Khan KC visited Rafah Crossing on 29 October 2023] pursuant to its mandate, this Unified Team is moving with a focus on collecting, preserving and analysing information and communications from key stakeholders in relation to relevant incidents. 

The Office has collected a significant volume of information and evidence, including through submissions received via OTP Link, our secure platform to receive submissions. I continue to encourage all those with relevant information to contact my Office."

Time will tell what follows the five countries' request to the ICC to look into Palestine. However, as things stand, it will perhaps take more members of the ICC to issue similar requests to make an impact like the Ukraine case. 

Perhaps, the shift in international opinion can play a role, in imploring respective governments, who are ICC members, to launch an investigation into crimes committed against Palestinians.