On Friday, February 5th, the International Criminal Court (ICC) decided that its jurisdiction rightfully extends to Palestinian territories. This landmark ruling is significant given that Palestine is not internationally recognized as an official state, even by the United Nations where it holds non-member observer status. The response to the ICC’s decision has been incredibly controversial with international rights groups praising the progressive step forward while countries such as Israel and its allies decry what they see as an unfounded and prejudiced move.
Tensions between Palestine and Israel have run high for almost 100 years with both groups making claims to Jerusalem and other territories, sparking regional violence. Palestinian statehood has also been hotly debated due to its lack of official borders and continued Israeli occupation. Given the prominence of these territorial disputes, the ICC’s decision will be monumental in bringing these discussions to the international table.
The ICC was founded to investigate the “gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression” (ICC). Although international in scope, the ICC serves as a last resort when states either refuse or are unable to properly prosecute crimes within their borders. The ICC’s founding document, the Rome Statute, currently has 123 signatory countries. Under the Rome Statute, the ICC can only prosecute atrocities in cases where states have granted it jurisdiction. However, the court has recently affirmed its right to investigate crimes perpetrated by non-members in a member state’s territory. In 2020, the ICC decided to inspect U.S. war crimes in Afghanistan. President Trump refused to cooperate and enacted sanctions and visa suspensions for ICC members. The new probe in Palestine is a similar move as Israel is not a member of the ICC but Palestine is.
The ICC has accused both Israeli Defense Forces and armed Palestinian groups like Hamas, a Sunni Islamist group, of war crimes; those listed include civilian targeting and torture on both sides, unlawful Israeli settlements, and Israel’s violent response to the 2018 Gaza protests. Palestine Authority first referred its situation to the court in 2009 but was denied more than a preliminary examination given Palestine’s status. After being awarded ICC membership in 2015, Palestine successfully appealed for an investigation in 2018. Current ICC Prosecutor Fatou Bensouda concluded that war crimes had been committed since 2002, but asked the court to determine if it had lawful jurisdiction over Palestinian territories before continuing the probe; given its positive ruling, Bensouda can begin a formal investigation. Israel has aggressively denounced the decision, with Prime Minister Benjamin Netanyahu calling it an act of “pure antisemitism” and promising to fight the “perversion of justice” (Reuters). As Israel’s ally, the United States has called out the court for targeting Israel and exercising jurisdiction over non-consenting parties. Although the Biden administration has promised to review Trump’s ICC policies, it remains opposed to an American investigation and has promised to continue supporting Israel.
Seven other parties to the Rome Statute have opposed the ICC decision—Australia, Austria, Brazil, the Czech Republic, Germany, Hungary, and Uganda—many of which Israel lobbied to fight on its behalf. The ICC presiding judge also dissented from the majority opinion, claiming that Palestine does not have standing under the Rome Statute’s provisions. These complaints reflect a growing concern that the ICC is becoming a political body rather than an impartial judiciary.
Additionally, many Palestinian citizens are concerned that things will get worse before they get better. Last week, the Palestinian Foreign Ministry reported increased Israeli “attacks against the Palestinians, their property and holy sites,” (Palestine Chronicle) and has asked the ICC to accelerate its investigation and for international humanitarian intervention. This report is concerning given the ICC’s historical lack of efficiency: it issued a single decision in its first 10 years of existence and just this year convicted a CAR rebel leader from 2013. Furthermore, Palestine and Israel have agreed to restart security cooperation and put Israeli annexation plans on hold, a diplomatic improvement which may now be threatened. While the ICC’s investigation may have altruistic intentions, its controversial impact and tedious process may trigger a dangerous humanitarian crisis.
As a global, objective body, the International Criminal Court is responsible for intervening when human rights are violated. This decision is a step forward for Palestinian recognition. However, the ICC is limited by its members, and an overstep of this authority could lead to decreased legitimacy— which the ICC already suffers. As tense relations are strained by this verdict, it is imperative to reach a peace agreement between Israel and Palestine. Human rights organizations and the United Nations need to consolidate resources in Israeli-Palestinian territories to ensure protection of individuals while working towards a path to statehood for Palestine. Until clear borders and rights are determined, violence will persist, and any legal or international intervention will be increasingly difficult and contested.