ICC investigations into Israel

International Criminal Court investigations into the state of Israel for its war crimes (including potential genocide) committed against Palestinians in the West Bank and Gaza as well as for crimes within Occupied Palestine have a sordid and politically charged history, with questions regarding jurisdiction and complications caused by direction interventions and implied threats from third parties such as the United States on behalf of Israel.

Background

The International Criminal Court is an international criminal tribunal, independent from the United Nations, established under the charter of the Rome Statute as an independent judicial body headquartered in The Hague, Netherlands (which is why the ICC is often referred to as The Hague). It was established to provide a non-partisan international venue where serious crimes (such as genocide, war crimes, crimes against humanity, and "the crime of aggression") could be referred so the subject of a referral could be investigated, and if the investigation findings warrant, subsequently charged, arrested, tried, and (in the case of a guilty verdict) sentenced. The ICC does not adjudicate between nations and is only empowered to pursue charges of alleged violations of the Rome Statute against individual perpetrators (and their collaborators).

Jurisdiction

Unlike the Genocide Convention, which applies to all recognized members of the United Nations (although some countries ratified the convention only with reservations expressed against certain of its articles), there are a number of countries that have not signed and/or ratified the Rome Statute, complicating questions of ICC jurisdiction. The United States and Israel are both countries that have signed but not ratified the Rome Statute, and both have refused to recognize the jurisdiction of ICC over their actions. Palestine, however, is a signatory to the Rome Statute and has repeatedly given the ICC jurisdiction over any war crimes committed on internationally recognized Palestinian territory both by Israel or by any of the Palestinian resistance factions, the ICC has found that it has jurisdiction over Israeli war crimes and acts of aggression carried out in the West Bank and the Gaza Strip, though it has shown great reluctance in pursuing charges against Israeli officials for their role in these crimes.

The State of Palestine engaged in a lengthy, multi-year effort to get the International Criminal Court to find it has jurisdiction over Israeli war crimes committed on Palestinian soil. As of 2024, it seems that the question of ICC's jurisdiction over war crimes committed in Palestine has finally been settled, which allowed the ICC prosecutor to take the unprecedented step of pursuing warrants for the arrest of Israeli leaders in connection with crimes carried out during the 2023-2024 Israel War on Gaza.

2018 ICC investigation into Israel

In 2018, the ICC Prosecutor Fatou Bensouda announced a preliminary investigation into Israel for its war crimes committed against Palestinians during the 2018 Israel war on Gaza, at the request of Palestine. While Israel is not party to the ICC, Palestine became a member in January 2015 and asked the ICC for an investigation into crimes it alleged Israel committed, based on its right to do so under the Rome Statute (which came into force for Palestine on April 1, 2015). In response, US National Security Adviser John Bolton threatened to unleash sanctions on The Hague and any country aiding the ICC in an investigation into US or Israeli officials, saying "If the court comes after us, Israel, or other US allies we will not sit quietly. [..] We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead. [..] We will not allow the ICC or any other organization to constrain Israel’s right to self-defense." The United States closed the Palestinian diplomatic mission in Washington DC as punishment for its request to the ICC for an investigation and the ICC case has never progressed past the preliminary investigation stage.

On December 19, 2019, Bensouda issued a statement saying that after conducting a thorough investigation spanning over five years, she was "satisfied" that "war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip," and that "cases arising from the situation would be admissible" in an ICC tribunal, and that such an investigation would serve "the interests of justice." She refrained, however, from making any charges due to the "unique and highly contested legal and factual issues attaching to this situation," referring to the Israeli occupation of Palestine, and requested a jurisdictional ruling to re-iterate that the ICC would have jurisdiction over the crimes her investigation had yielded. Bensouda left office in 2021 without taking further action on the matter.

2023 ICC investigation into Israel

In November 2023, five ICC member states (South Africa, Bangladesh, Bolivia, Comoros, and Djibouti) filed a joint request to ICC Prosecutor Karim Khan seeking an investigation into possible war crimes, crimes against humanity, and genocide committed by Israel in Palestine in the context of the 2023 Israel war on Gaza, although the previous 2018 investigation was never closed. The office of the ICC prosecutor had already declared its jurisdiction over the conflict after the events of October 7th (via Palestine's status as a signatory, as Israel is not a member state). While (as noted above) Khan's predecessor, Fatou Bensouda had conducted a thorough investigation into Israel's crimes in the occupied Palestine territories and concluded that serious crimes had indeed taken place, Khan himself has appeared to take a more partial view of the situation, only formally denouncing Hamas as having possibly committed war crimes on the 7th of October but refraining from condemning Israel's response except to say that it had an "obligation" to follow international law and the Geneva Convention. Khan also later visited Israel, which is not a signatory to the Rome Statute or an ICC member state, to meet with and express his support for the families of those taken hostage. In his later meeting with Mahmoud Abbas in Ramallah, he praised what he called Israel's system for "ensuring compliance with international humanitarian law." As a result to what was largely viewed as a highly biased visit with priorities that did not reflect the scale of the yet ongoing slaughter of civilians in Gaza, Palestinian human rights groups refused to meet with Khan. Khan was elected to the office of ICC prosecutor in 2021 and was widely considered to be the preferred candidate for the job by both Israel and the United States — two countries that not only are not ICC member states or Rome Statute signatories but also have been extremely critical of the ICC and its investigations in the past, spoken strongly against its jurisdiction over war crimes, and, in the case of the United States, even imposed sanctions against the Court and its (former) prosecutor.