By Pearce Clancy and Rania Muhareb
The Prosecutor of the International Criminal Court has finally announced the opening of an investigation into the Situation in Palestine. This long-awaited decision follows five years of preliminary examination and comes over a year since the Prosecutor’s request for a ruling on the Court’s territorial jurisdiction in Palestine, which encompasses the Gaza Strip and West Bank, including East Jerusalem, as the ICC’s Pre-Trial Chamber I decided in February.
Palestinians have sought justice at the ICC for over a decade—a history on which the Prosecutor reflects in her statement dated 3 March. The Prosecutor recalls, notably, that she declined to initiate an investigation into the Israeli military attack on the Gaza Freedom Flotilla on 31 May 2010, seemingly in order to initiate the broader investigation into the Situation in Palestine. This is despite the fact that the incident led to the killing of ten individuals and the injury of 50 others, with the Prosecutor having recognised that there was a reasonable basis to believe that war crimes had been committed.
Nevertheless, the Prosecutor decided not to proceed on the basis that the gravity threshold had not been met, a conclusion contested by the ICC’s Pre-Trial Chamber I, spurring a long controversy over prosecutorial discretion and judicial overview. Whether one agrees with the Prosecutor or the Chamber, the decision not to initiate an investigation into the Mavi Marmara case exemplifies the fragmented and piecemeal manner in which Israeli impunity has been approached to date.
While welcoming the Prosecutor’s important decision to finally open an investigation into the Situation in Palestine in the face of immense political pressure, it is nonetheless crucial to recall the broader context within which the ICC operates, both in terms of the Court’s own internal dynamics and limitations, and in light of past international failures to hold Israeli perpetrators to account.
Contextualising the Palestine Investigation
On the whole, discussions thus far of the ICC’s recent movements in the Situation in Palestine have taken place in a relative vacuum, divorced from previous and other ongoing attempts to pursue justice and accountability for Palestinians. Over the past two decades, the United Nations (UN) has established no less than ten investigatory mechanisms into serious violations of international human rights and humanitarian law in Palestine, including suspected international crimes. These initiatives all failed to meaningfully challenge Israel’s pervasive culture of impunity and were either abandoned due to Israel’s refusal to cooperate and to grant investigators access to the occupied Palestinian territory, or had their recommendations otherwise unimplemented and effectively disregarded by the international community (see civil society submission on accountability, para 67-75).
Similarly, while the International Court of Justice in its 2004 Advisory Opinion on the construction of a wall in the occupied Palestinian territory made numerous significant determinations—not least that the construction and maintenance of Israeli settlements in the occupied West Bank, including East Jerusalem, constitute the grave breach of population transfer, prohibited under Article 49(6) of the Fourth Geneva Convention—the Opinion ultimately spurred little to no meaningful action by third states. The international community has continued to trade in settlement products, for example and as such contributes to the maintenance of the illegal situation created by Israel, facilitating the recurrence of violations against Palestinians.
Pearce Clancy is a PhD candidate at the Irish Centre for Human Rights at the National University of Ireland, Galway, and a legal Researcher with the Palestinian human rights organisation Al-Haq. Rania Muhareb is a PhD candidate at the Irish Centre for Human Rights, a consultant with Al-Haq, and a Policy Member of Al-Shabaka, the Palestinian Policy Network.
Editor’s Note: The following is a cross-post which was originally published on Opinio Juris on 2 April 2021, and can be found here. Since being published on Opinio Juris, the United States has rescinded Executive Order 13928 and its sanctions on Fatou Bensouda and Phakiso Mochochoko.