The International Criminal Court’s Failure to Hold Israel Accountable

Although the International Criminal Court was created by the Rome Statute in 1994, it has never successfully been used to hold Israel to account for its abuses against the Palestinians. The ICC is the first permanent criminal court, and was intended to provide a forum for the prosecution of serious international crimes, including genocide, war crimes, and violations of the Geneva Conventions. Apartheid is also listed specifically as a crime subject to its jurisdiction under Article 7, making the court especially relevant to the current situation in Israel and the Occupied Palestinian Territories.

While certain international crimes, war crimes, and crimes against humanity carry universal jurisdiction, the issue of criminal prosecutions has usually been left to the individual states involved. Until the ICC was formed, ad hoc tribunals that were usually convened by the winning side in international conflicts dealt with such crimes. This included the Nuremberg Trials and the trials for the Rwanda Genocide.

The hopes that Israeli commanders and officials would also have to face similar trials for their own war crimes and crimes against humanity have faced greater obstacles, as Israel and the United States have exerted considerable pressure and deployed a variety of procedural steps to forestall both the convening of such a trial and any substantive discussion on the guilt or innocence of their nationals.

Israel and the Palestinians

Palestinians and their supporters have long yearned to have their grievances addressed before such an international tribunal, and initially welcomed the creation of the ICC. Many of the crimes listed under its jurisdiction clearly apply to the Palestinian situation. The settlement of Israeli civilians in the Occupied Palestinian Territories, for example, is a crime that is squarely within its jurisdiction; and the International Court of Justice, in a case regarding Israel’s Separation Wall, has already held that the Geneva Conventions apply to these territories.  However, there are serious doubts that Palestinians can ever get justice from an ICJ tribunal, which began by prosecuting African and developing countries, and which does not seem to have an appetite to address possible crimes by Israel.

Israel, for its part, has refused to sign the Rome Convention to join the ICC, and has used its influence—and that of the United States—to prevent or delay any serious consideration of the claims and charges against it. Israel’s standard effort continues to be the use of procedural tactics to avoid any discussion on the substance of Palestinian claims, and to deny that the court has any jurisdiction to try the state of Israel or its citizens.

The first line of defense was to claim that the ICC has no jurisdiction since Palestine was not a sovereign nation when Israel occupied its territory, to point out that Israel had not signed the Rome Statute and therefore does not fall under its jurisdiction, and to state that no one has standing to request any action by the court. In point of fact, the Palestinian National Authority (PA) did not at first sign the Rome Statute; but even after it signed on January 1, 2015, it was not quick to demand that the ICC investigate Israel. Israel, for its part, applied considerable pressure and threatened the PA not to submit any claims to the ICC at all. Israel publicly announced that any attempt by the PA to bring an action before the ICC would be viewed as a hostile act and would carry consequences, including the suspension of the transfer of the taxes and customs duties that it collects on behalf of the PA. Israel also claimed that such an application violated the PA’s commitment under the Oslo Accords to treat the Oslo process as the sole legitimate forum for discussing disputes between the two parties. Such an application would therefore be viewed as a “unilateral action” that violates the accords.

Israel publicly announced that any attempt by the PA to bring an action before the ICC would be viewed as a hostile act and would carry consequences.

The US government also made similar statements declaring that the ICC has no jurisdiction and that any action by the PA to bring matters before the court would be viewed as an unhelpful “unilateral action.” The US Congress even proposed legislation specifically suspending any aid to Palestine if it joins the ICC or other international bodies as a state, or if it brings—or cooperates with anyone in bringing—charges against Israel before the ICC. The Trump administration went further, imposing sanctions on ICC prosecutors and threatening legal action against them if they investigate US or Israeli crimes.

Palestinian civil society organizations undertook a determined effort to lobby and persuade the PA to first join the ICC and then to authorize the submission of a demand that the ICC look into Israeli war crimes. Article 15 of the Rome Statute authorizes the court prosecutor to undertake investigations based on the requests and submissions of individuals and organizations, and not only member states. This came in the context of a determined Israeli (and US) effort to threaten and cajole the PA not to apply to the ICC at all. On March 3, 2021, after much pressure, outgoing ICC Prosecutor Fatou Bensouda prosecutor finally agreed to open an investigation into war crimes in the Palestinian territories, including those allegedly committed by both Israel and Hamas (which governs the Gaza Strip) during the Gaza hostilities of 2014. This decision was later confirmed by the ICC, which held in 2021 that indeed it did have jurisdiction over the matter.

New Leadership at the ICC

On February 12, 2021, British Barrister Karim Khan was elected as the ICC’s new prosecutor, and was sworn in on June 16, 2021. Despite his professed desire to improve the credibility of the court and his private protestations that he cares about the question of Palestine, little has been done by his office in the last two years.

One of the arguments Israel has used publicly is that Palestinians also committed war crimes during the wars on Gaza in 2014 and 2021, and that the use of rockets that targeted civilian populations in Israel was itself a war crime that the ICC would also investigate if it were to address Israeli crimes. To its credit, Hamas announced that it has no problem with this potentiality, and that it would welcome an investigation by the ICC of all war crimes by all parties.

The Ukraine war that began in February 2022 gave a major boost to Palestinian attempts to force accountability and end Israeli impunity. Led by the United States, the world was quick to demand swift action by the ICC against Russia for its alleged crimes in Ukraine. In fact, Prosecutor Khan sprang into action, issuing an actual arrest warrant for Russian President Vladimir Putin for the alleged crime of transporting children out of Ukraine and into Russian territory, in violation of the Geneva Conventions which prohibit the transfer of civilian populations into or out of militarily occupied territories. This is the same provision, incidentally, that makes Israeli civilian settlements in the occupied Palestinian territories illegal under international law. This created quite a dilemma for Khan, who was being challenged for dragging his feet on the investigation against Israel while he simultaneously worked at great speed to address allegations of war crimes by Russia in Ukraine.

The Ukraine war that began in February 2022 gave a major boost to Palestinian attempts to force accountability and end Israeli impunity.

A number of UN special rapporteurs wrote a detailed letter to Khan on March 23, 2023, urging him to take prompt action on the investigation against Israel. He responded with a letter of his own, stating that his office was seeking significant additional resources for its investigation team, and reiterating that he intends to visit the occupied territories and Israel later this year. He also indicated that his office receives information from victims and civil society actors who are free to send him additional information.

Palestinian human rights organizations have indeed for many years been documenting Israeli actions they consider violations of international law, and have been preparing files against specific Israeli military officers and politicians whose public statements and actions amount to war crimes and crimes against humanity. Such documentation was recently made available to the ICC and its staff. A 250-page document that was mostly prepared by human rights organization Al-Haq, and that has yet to be made public, was submitted by Palestinian civil society organizations to the ICC. And despite a close personal relationship between Shawan Jabarin, the executive director of Al-Haq, and Prosecutor Khan, it has been impossible to pin the latter down on any timeline for ICC action on the issue of Israel. Jabarin recently reported to this author that he has pressed Khan on this issue and informed him that the credibility of the ICC and its objectivity will be in question if it fails to address this question, but that he still could not obtain from him any concrete commitment on a timeline for any action.

One Last Potential Israeli Maneuver

Even if the ICC prosecutor is eventually unable to delay matters further, Israel still has one last card to play to avoid a hearing: the issue of complementarity. Under the rules of the ICC, the jurisdiction of the court is only complimentary to national courts. This means that it is specifically prohibited from looking into cases that are currently being adjudicated or that have been adjudicated in national courts, unless it can be shown that the courts are either unwilling or unable to provide a proper forum for dealing with the alleged crimes. Article 17 of the Rome Statute states that such a case is inadmissible unless one or more of the following criteria are met:

  1. The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
  2. There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
  3. The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

Even if the ICC prosecutor is eventually unable to delay matters further, Israel still has one last card to play to avoid a hearing: the issue of complementarity. Under the rules of the ICC, the jurisdiction of the court is only complimentary to national courts.

Israel has already flagged this issue as its best argument to avoid the jurisdiction of the ICC, by claiming that its courts are independent and effective and that they will deal with any alleged crimes, including war crimes. In a curious twist, the Israeli protest movement has made the argument that the government’s proposal to weaken the courts in Israel would expose Israeli military commanders to the risk of being tried in the Hague as war criminals. They see that the existence (and the perception) of independent courts in Israel automatically triggers the inadmissibility argument since Israel would be perceived as having a robust independent judiciary that can challenge and rebuke the Israeli government, its officials, and its policies. But if Israeli courts are shown to be complicit in Israel’s war crimes by failing or refusing to try criminals, or even by declining to consider the war crimes illegal, then they cannot raise the issue of complementarity. Opponents of the Israeli judicial reforms argue that weakening the courts and making them subservient to the administrative and legislative branches of government opens the door to trying Israel and Israelis in the ICC.

The case of Palestine provides the litmus test for the credibility of the International Criminal Court. If the court fails to address this issue, it will lose much of its credibility as an objective court, and will henceforth be viewed as a tool for powerful nations to use selectively against their enemies, and not as a genuine international tribunal entrusted with prosecuting war crimes and crimes against humanity.

The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.

Featured image credit: Shutterstock/Friemann