Will an ICC investigation bring Israel to justice for its war on Gaza?

After international pressure, the International Criminal Court (ICC) has announced that it is carrying out an investigation into war crimes perpetrated by Israel in its relentless onslaught on Gaza since 7 October.

In one month, more than 10,000 Palestinians have been killed, including over 4,000 children, and Israel has vowed to continue despite widespread calls for a ceasefire.

Following his visit to Egypt’s Rafah crossing on 29 October, ICC Prosecutor Karim Khan said that what is happening in the Gaza Strip cannot be accepted, and that he hoped to enter Gaza in the coming days.

Khan affirmed that Gazans are enduring “unimaginable suffering”, describing the situation of innocent people trapped in a war they cannot flee as untenable. He underlined the need to protect civilians in accordance with international law.

"The prosecutor called on Israel to respect international law, stressing that civilian infrastructure - namely homes, mosques, churches, schools and hospitals - cannot be targeted under international humanitarian law"

In addition, he asked Israel not to delay the entry of life-saving aid into the Gaza Strip, warning that blocking humanitarian aid constitutes a crime amidst an unprecedented humanitarian catastrophe.

Shortly after embarking on its intense campaign of bombardment, Tel Aviv imposed a total blockade on the already besieged enclave, cutting off its residents from electricity, water, food, fuel and medicines. Much-needed supplies to Gaza have been minimal ever since.

The prosecutor called on Israel to respect international law, stressing that civilian infrastructure - namely homes, mosques, churches, schools and hospitals - cannot be targeted under international humanitarian law.

Khan called upon member states of the ICC and non-state parties to help collectively enforce the Geneva Conventions, international law and principles of the Rome Statute of the court, and to share evidence regarding crimes and violations in order to investigate them and prosecute them appropriately.

Following Khan’s visit to Rafah crossing, Palestinian human rights organisations including Al Haq released a joint call urging the prosecutor to investigate and prosecute the unfolding crimes in the occupied territories since 7 October, to immediately issue arrest warrants for the cases currently before his office, and to prevent further crimes including by issuing statements of deterrence.

Ahmed Abofoul, international lawyer and legal researcher at Al Haq, argued that certain alleged crimes in Palestine do not require access to the territory to be investigated.

He referred to the alarming “genocidal statements” by Israeli officials, and Israel’s “systematic and deliberate targeting of objects indispensable to the survival of the civilian population, including bakeries, UNRWA food storages and water reserves."

"The information for some of these crimes is already available in the public domain,” Abofoul told The New Arab (TNA). “The prosecutor can start investigating in addition to probing several other crimes against humanity that have been carried out in Palestine for decades, especially apartheid and persecution”.

The Commission of Inquiry already has clear evidence in relation to possible war crimes committed by all sides in the latest violence in Israel and Gaza. Three days into the hostilities, the Commission said to be “gravely concerned” with the Israeli aggression and its complete siege on the coastal strip, which amounts to “collective punishment” of Gaza's 2.3 million.

“When looking at the situation in Gaza, we’re certainly looking at a massive potential crime scene,” Helen Duffy, professor of international humanitarian law at Leiden University, said to TNA, pointing to a “significant body of evidence” emerging that points to war crimes and potentially crimes against humanity and genocide.

She stressed that one very important aspect of the investigation is the preservation of evidence gathered on the ground that can be later used for accountability, which is hugely challenging during an armed conflict.

Palestine became a member of the ICC in 2015, a positive step that should open an avenue toward legal accountability. Since then, Palestinians have filed dozens of complaints against the state of Israel.

Israel, which is not a member of the ICC, claims that the tribunal lacks the jurisdiction to investigate in the conflict because Palestine is not a sovereign state, a position that has been backed by the US.

Stil, as a signatory to the Geneva Conventions, Israel is obligated to investigate and prosecute war crimes, including any committed by its own forces. However, it refuses to cooperate with the criminal court and prevents the ICC investigation team from travelling to the country or entering Gaza.

In March 2021, the ICC’s former chief prosecutor Fatou Bensouda launched a probe into Israel’s alleged war crimes in the occupied Palestinian territories of Gaza, the West Bank and East Jerusalem dating back to 2014. 

This came after conducting a meticulous preliminary examination over the course of six years, following an investigation commenced by the judicial body in 2009. But after Bensouda left office in June 2021, the court went quiet.

"'The appropriate place for Benjamin Netanyahu and Israeli state officials who've made genocidal statements is a cell in The Hague,' said Abofoul"

“Not communicating, not gaining a sense of progress from the Office of the Prosecutor sends the message that the situation does not warrant attention,” UN Human Rights Council’s special rapporteur on Palestine Francesca Albanese told Justice Info. She joined fellow UN independent experts earlier this year calling on the ICC prosecutor to swiftly carry out the investigation.

Given the slow pace of the ICC’s work in Palestine, and lack of information on the investigation by the office of the prosecutor, there are expectations that it may act timely over crime allegations in the current war in Gaza are tentative.

Experts have raised impartiality and political influence concerns. The court’s prosecutor responded rapidly to war crime claims in Ukraine as a number of countries referred the matter immediately to his office.

In contrast, no states have called on the prosecutor to step up his efforts and provide accountability when it comes to Palestine. Nor has the tribunal taken any practical steps in addressing crimes committed there until today.

Abofoul contended that the case of Palestine is the “litmus test” for the credibility of the ICC to prove that it is "truly the world's criminal court”, adding that the court needs to show that it views Palestinians as “equal human beings” who deserve equal protections under international law.

“The conclusion of the investigation and the issuing of arrest warrants is long overdue, there’s no reason whatsoever for this to take any longer,” the lawyer said. “The appropriate place for Benjamin Netanyahu and Israeli state officials who’ve made genocidal statements is a cell in The Hague,” he added.

“Lack of urgency about Palestine compared to Ukraine shows inequality loaded with political influences,” Dewan Khalil, senior lawyer at a UK firm part of previous ICC cases involving Israel, told Anadolu Agency.

Furthermore, the Palestine investigation is under-resourced, accounting for less than 1 million Euros in its proposed funding for 2023, the smallest budget allocation compared with other situation countries.

Despite the staggering civilian death toll and accusations of war crimes, Western states continue to actively support Israel. In the third week of the war, the US, UK, Germany, France, Italy and Canada signed a joint statement reaffirming their support to Israel and its right to defend itself.

The US, Israel’s closest ally, firmly opposes any probe into the Palestinian situation and has routinely blocked international efforts to hold Israel accountable. The Biden administration rejected the opening of the investigation by the tribunal in 2021.

“The violations that we’re seeing today come on the back of a long history of impunity and failure of the international community to insist on adherence to international law,” Duffy explained.

Inaction by the global community has only bred impunity for past abuses and enabled today’s crimes. The ICC is the only international institution that could impartially investigate and prosecute the alleged crimes when Israeli authorities are “unwilling or unable” to do so. The investigative body is almost certainly the only legal option left for Palestinians in their pursuit of justice.

"'The violations that we're seeing today come on the back of a long history of impunity and failure of the international community to insist on adherence to international law'"

Duffy observed that third states need to do everything possible to press Israel to stop violating basic norms of humanitarian law, as well as to ensure they are not supporting it in a way that might render them complicit in violations.

She believes that global pressure is the key factor that will influence the conduct of a due probe. “It depends on political will, and on how much pressure is put by relevant actors across the world in demanding Israel to fulfil international obligations”, she asserted.

Abofoul believes the ICC’s upcoming work in Palestine could provide a “glimpse of hope” to the victims.

“Palestinian victims need to feel this court is working actively, issuing arrest warrants. Now, more than ever, victims need to see there’s a way forward in having recourse to international law,” he concluded.

Alessandra Bajec is a freelance journalist currently based in Tunis.

Follow her on Twitter: @AlessandraBajec