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Monday, October 16, 2023, 11:35 AMThe ICC opened an ongoing investigation into the situation in Palestine in 2021. How might the current conflict affect the investigation, and vice versa?
The International Criminal Court, The Hague, September 2017. (jbdodane, https://tinyurl.com/ykzydxnd; CC BY-NC 2.0 DEED, https://creativecommons.org/
licenses/by-nc/2.0/) On Oct. 10, three days after the unprecedented surprise attack on Israel by Hamas, the UN Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel released a statement that read, “There is already clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza, and all those who have violated international law and targeted civilians must be held accountable for their crimes.”
Though the statement didn’t offer specific evidence, it mentioned reports that “armed groups from Gaza have gunned down hundreds of unarmed civilians,” and warned, “Taking civilian hostages and using civilians as human shields are war crimes.” Other credible reports detail civilian massacres, abductions, and other abuses, many of which may implicate Hamas militants in multiple war crimes and crimes against humanity. The UN High Commissioner for human rights said he was “deeply shocked and appalled by allegations of summary executions of civilians, and, in some instances, horrifying mass killings by members of Palestinian armed groups.”
The commission also expressed grave concerns over potential war crimes committed by Israel’s counterattack on Gaza by air and the Israeli government’s “announcement of a complete siege on Gaza involving the withholding of water, food, electricity and fuel which will undoubtfully cost civilian lives and constitutes collective punishment.” In his analysis of the situation in Just Security, Associate Professor of International Law at the Fletcher School of Law & Diplomacy Tom Dannenbaum focused on a specific potential crime related to the siege order—“the starvation of civilians as a method of warfare, which is a violation of international humanitarian law and a war crime (ICC Statute, article 8(2)(b)(xxv)).” Human rights watchdog groups have also accused Israel of using white phosphorus munitions, in violation of international humanitarian law because of their “indiscriminate nature” and danger to civilians.
Civil society groups, governme
nts, and the United Nations have echoed these calls to uphold the laws of war and ensure legal accountability for its violations. One avenue for pursuing legal accountability is in the International Criminal Court (ICC). In most situations, when such evidence of war crimes comes to light, and state parties make referrals, the ICC Office of the Prosecutor can exercise jurisdiction through different triggers, and then initiate an investigation into the alleged atrocities through a number of ways. But in the case of Gaza, determining whether the ICC exercises jurisdiction is unnecessary—the ICC is already investigating alleged atrocities, and has ostensibly been doing so since 2021. I will leave it to international law experts to analyze whether or not certain actions taken by Hamas and the Israeli Defense Force constitute war crimes or crimes against humanity—many such experts alr
eady are. Instead, this article aims to address questions specific to the ongoing ICC investigation in Palestine: How will the latest outbreak of hostilities affect the investigation, and vice versa? Will the investigation have any meaningful impact on the war? What challenges will investigators face as the war drags on? The ICC Investigation into the Situation in Palestine
In March 2021, the ICC opened its investigation into the situation in the State of Palestine under then-Prosecutor Fatou Bensouda. The announcement of an investigation followed Palestine’s 2015 accession to the Rome Statute, which gave the ICC jurisdiction over crimes perpetrated by Palestinian nationals or crimes perpetrated in whole or in part on Palestinian territory. In a 2019 statement, the prosecutor concluded that “(i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip ("Gaza") . . . (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.” Then, after years of deliberation as to whether the ICC had jurisdiction over alleged war crimes in Gaza since 2014 and over alleged illegal annexations of land by Israeli settlers in the West Bank, the judges at the ICC ruled in February 2021 that the court did indeed have jurisdiction over those areas.
The United States and Israel, neither of which are party to the Rome Statute, both opposed the investigation at the time. In March 2021, U.S. Secretary of State Antony Blinken said, “The United States firmly opposes and is deeply disappointed by this decision.” Israeli Prime Minister Benjamin Netanyahu also condemned Bensouda’s investigation: “The decision of the international court to open an investigation against Israel today for war crimes is absurd. It’s undiluted antisemitism and the height of hypocrisy.” And though the Biden administration, in a major policy shift, began sharing evidence of alleged Russian war crimes in Ukraine with the ICC in July, the United States and Israel have maintained their opposition to the investigation in Palestine.
The latest upsurge in violence will likely complicate the investigation, though it does not mean the investigation will cease entirely or even pause. On the contrary—the current war will likely only add to the investigators’ workload, and may also lead to greater resources for the investigation. In a statement issued days after the attack—the only formal statement issued by the office thus far—the Office of the Prosecutor affirmed that its “mandate is ongoing and applies to crimes committed in the current context.” In addition to reminding people of the ICC’s jurisdiction in the conflict, the prosecutor also mentioned that the office is “continuously gathering information in support of the investigation,” has “sought to enhance expertise deployed in this investigation,” and “has requested additional resources from the Assembly of States for this purpose.”
The prosecutor who issued the statement is Bensouda’s successor, Karim A. A. Khan. Khan took over as prosecutor just a few months after the ICC opened the Palestine investigation in June 2021 and faced early criticism for delaying or failing to prioritize the Palestine investigation before this recent outbreak of war. “So far, Khan’s case priorities have fallen in line with the foreign policy priorities of major global powers,” wrote Alice Speri in the Intercept in May. She continued:
While the prosecutor moved quickly to investigate possible war crimes in Ukraine, for instance, he has done little to advance an investigation in Palestine, opened by his predecessor in 2021 and strenuously opposed by the U.S. and Israel, neither of which are ICC members. Though Khan has indicated that he hopes to ‘visit Palestine,’ the investigation is minimally staffed and has largely stalled, according to people familiar with it.Khan’s first public statement related to the Palestine investigation came in December 2022, after Al Jazeera filed a complaint against Israel for the killing of journalist Shireen Abu Akleh, in which he said it was a “goal” to make “a visit to Palestine in 2023.”
At the time of Khan’s statement, the ICC investigation in Ukraine had ramped up since opening in March 2022, and significant ICC resources were focused on that war. The Ukraine investigation continues to dwarf the Palestine investigation, but it also continues to dwarf just about any investigation ever conducted by the ICC. The court sent a team of 42 investigators, forensic experts, and support staff to probe alleged war crimes in Ukraine, its “largest-ever.” After 43 states parties referred the Ukraine situation to the ICC, Khan also successfully leveraged external support: 45 countries pledged Ukraine-
specific funding, coordination, and forensic technology. In many ways, the ICC reflects the will of the states that are parties to it, and its actions often reflect the geopolitical reality that the court is working in. However, this disproportionate distribution of resources and staffing may have also been a practical necessity rather than simply a reflection of geopolitical realities. As Marc Garlasco, a military advisor at PAX who has conducted extensive war crimes investigations in Syria and elsewhere, pointed out to me, one of the reasons the Ukraine investigation is so well-resourced “is because it has a large footprint. Gaza does not require the same footprint, at least not now. You don’t have investigators on the ground, and the area of operations is minuscule in comparison to the frontlines of Ukraine. Gaza is half the size of Kyiv, and that’s the entire conflict zone.”
The ICC’s budget is not large enough to do everything that its mandate suggests that it should be doing. With 17 ongoing investigations, the resourcing problem extends well beyond the Palestine situation. As Khan told Reuters on Oct. 13:
There’s been a perennial problem that the court as a whole and my office has not been properly funded to do their jobs and to vindicate the legitimate rights of survivors around the world. There wasn’t a team for Palestine when I assumed my responsibilities in June 2021. There was an investigation without a permanent team—I’ve established a team. Throughout the last two years, I’ve increased the resources of the team. In the budget that is currently being considered by the assembly of state parties, we’ve requested additional funds in Palestine. But every other situation that we have is underfunded and underresourced, and it’s a challenge to state parties and the international community whether they wish to give us the tools to do the job.Although the prosecutor’s constituents are states parties to the ICC, not civil society groups, the failure of the office of the prosecutor to issue a formal statement (beyond a short reply to a journalist) in the days after the conflict exploded raised questions of priorities. “The silence emanating from the Prosecutor ... is growing louder by the hour,” wrote Associate Professor of Law at American University Washington College of Law Rebecca Hamilton on Oct. 11, noting that such silence is “not the norm for a situation over which the ICC has jurisdiction,” especially when compared to the posture the prosecutor took in the context of Ukraine. Within 24 hours of Russia’s full-scale invasion of Ukraine in February 2022, Khan issued a statement reminding “all sides” that his office “may exercise its jurisdiction over and investigate any act of genocide, crime against humanity or war crime committed within the territory of Ukraine since 20 February 2014 onwards.” Khan eventually began to speak to the press on Oct. 13. “We have jurisdiction for any Rome Statute crimes ... committed by Palestinians in Israel and also we have clear jurisdiction for any crimes committed by the forces of Israel in Palestine,” Khan told the BBC that day in a short interview. “I don't have the luxury and it wouldn't be prudent to make knee-jerk reactions into the latest episode of violence that's only a few days old. We have to investigate incriminating and exonerating evidence equally.”
Challenges Facing the Investigation During the Ongoing Conflict
As described above, the outbreak of hostilities during an ongoing investigation is not a new dynamic for the ICC. The recent surge of violence does, however, raise new challenges for the Palestine investigators. As in other active conflict zones, the chance of investigators actually visiting Gaza, the West Bank, or Israel anytime soon is slim. In fact, cooperation in general with the warring parties is not likely—Israel is not party to the Rome Statute, and state cooperation typically only occurs when the court is investigating the state’s enemies. A low amount of resources and staff for the Palestine investigation, as compared to other investigations, may also impede rapid progress. And the nature of the Israel-Hamas conflict may also prove difficult on the investigators themselves—in Ukraine, for example, investigators can find relatively safe places to conduct interviews and relax. Finding similar spaces in Gaza is not realistic at the moment.
Even many of the ICC’s typical “non-permissive protocols” may prove more complicated in practice in the Israel-Palestine context. Investigators in Syria, for example, would visit refugee camps in neighboring Jordan and Turkey to collect witness testimony from survivors displaced from the conflict zone. In Palestine, these refugee camps are currently in the conflict zone. Calling, Whatsapping, and contacting people through other remote, digital methods in the conflict zone also grows more difficult as Gaza runs out of electricity, and internet connectivity dwindles. And as the nature of the conflict evolves, for example from an air war to a potential ground invasion of Gaza, the challenges will continue to evolve in tandem.
That said, many of these challenges are not unprecedented. As Garlasco told me, “Just because the operational tempo in Gaza is such that no one is going in or out as investigators that they can’t do any in situ investigations doesn’t mean the investigation is going to stop. They’ve got plenty they can work on while they’re not doing active, on-the-ground evidence collection.” This work includes collecting open-source information, such as satellite photos and social media posts, and interviewing witnesses who are no longer in the conflict zone in Israel or Palestine.
Despite the relative lack of resources, there’s quite a lot investigators can do now with a smaller footprint. They can proceed with the humdrum investigatory work of databasing. As investigators collect incidents and log them in a database, they’ll need to meticulously tag locations, weapons used, casualties, names, contact information, names of officials or civilians to interview, relevant official information like airstrike information, and so on. And as an important reminder, these incidents are not isolated to the current conflict—the investigation dates back to 2014.
It’s also important to remember that the ICC isn’t the only institution investigating war crimes. Typically, there is good cooperation between UN commissions of inquiry and the ICC, and there’s little reason to believe the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel will be any different. On Oct. 10, the commission announced that it is “committed to investigating current events and identifying those responsible for violations of international law on all sides, both those directly committing international crimes and those in positions of command responsibility,” and plans to “continue sharing information collected with the relevant judicial authorities, especially with the International Criminal Court, where the Office of the Prosecutor has already commenced an investigation on the situation of Palestine since 2021.” The commission’s report, whenever it is eventually published, could serve as a basis for the evidence the court is examining. ICC investigators can also share information with other investigatory bodies, including civil societies groups, such as Human Rights Watch and Amnesty International. International press can also prove helpful in evidence collection. However, the ICC will still need to verify every piece of evidence received from outside sources, regardless of origin.
As in any situation with limited access, digital evidence will play an important role in the Palestine investigation. The use of digital evidence and forensic reconstructions at the ICC is still a relatively new practice, and the Palestine investigation will be a huge test for the court to deal with the many challenges digital evidence raises: verification, deepfakes, and retraumatizing victims, to name a few. The latest upsurge in violence in Israel and Gaza coincides with the ICC’s’ digitalization and technological modernization initiative, Project Harmony, and its new digital evidence collection online platform, OTPLink, which “provides a more accessible avenue for witnesses of international crimes – including rape, torture, murder, and enslavement – to directly submit information to prosecutors in real-time.” As Hayley Evans and Mahir Hazim write in Just Security, “these initiatives promise more accessible information submission, streamlined and secure information processing, storage, and preservation, as well as more efficient analysis of complex information.” However, they “also have drawbacks and present potential pitfalls,” including “[i]lliteracy, language barriers, and lack of digital connectivity limit,” as well as “a real risk of individuals or organizations submitting false or misleading information to the database as evidence.” Still, the promise of digital evidence is especially relevant with respect to the many videos circulating of Hamas’s actions, particularly videos that contain information that identify perpetrators.
Despite the challenges associated with new technologies, the ICC’s use of digital evidence is not completely new territory. In 2017, the ICC issued an arrest warrant against Mahmoud Mustafa Busayf Al-Werfalli, an alleged commander within the Al-Saiqa Brigade in the context of the Libya situation. One commentator characterized it as “the first ICC arrest warrant to be based largely on evidence collected from social media.” Other cases have followed. This summer saw the conclusion of the trial of Al Hassan Ag Abdoul Aziz, a member of the Ansar Dine Islamist group in northern Mali. The case marked the first use of an immersive virtual environment at the ICC, which included 3-D digital reconstructions, interactive maps, and forensic reconstructions of alleged crimes.
Potential Impact of the Investigation on the Conflict
The prospect of criminal accountability on either side of the Palestine situation, including the likelihood of a Hamas or Israeli Defense Forces leader ending up in the dock, remains very low. That does not mean the investigation is without value. ICC investigations may not be a panacea for conflict, but they can still have meaning.
For example, many scholars have studied the potential for an ongoing ICC investigation or the threat of an ICC investigation to deter war crimes and other violations of international law. In 2018, then-ICC Prosecutor Bensouda warned Israel that its planned destruction of a Palestinian Bedouin village in the West Bank could constitute a war crime. Though impossible to prove causation, the village ultimately was spared. This example highlights the potential deterrent effect in small, localized contexts—that individual level, foot soldier type deterrence may be possible thanks in part to an ICC investigation. As Hamilton writes, “Such statements not only serve the goal of deterrence, of course. They also help shape public thinking and diplomatic discourse. They can empower those who look to clear guardrails amidst the violence.”
Short of actual arrest and prosecution, ICC investigations may engender a type of social deterrence, thanks to the taint that an indictment can bring on the accused. The potentially delegitimizing impact of an ICC arrest warrant could curb certain behaviors out of a fear of political scrutiny, or other complications, rather than criminal prosecution. These crimes have no statutes of limitations, and the charges hang over the indicted for life. Long-term options for those people are limited: remain in power so they’re never vulnerable to arrest, or assume that once power transfers in elections or otherwise that the next regime would continue to protect them from arrest?
It’s important to remain skeptical on this issue, as deterrence in international criminal law remains deeply contested. Yet, the fact that the deterrence debate rages on inconclusively may seem a worthy enough reason for some to keep trying it.
The ICC investigation may also serve some kind of documentary purpose, as the current Israel-Hamas war has generated enormous quantities of misinformation, disinformation, and propaganda shared across social media platforms. “The volume of misinformation on Twitter was beyond anything I’ve ever seen,” said one BBC Verify expert. An ICC arrest warrant and other documents produced over the course of the investigation may constitute an official record used against misinformation. After all, this was one of the ideas behind another international criminal tribunal, the International Criminal Tribunal for the former Yugoslavia, which claims to have “contributed to an indisputable historical record, combating denial and helping communities come to terms with their recent history. Crimes across the region can no longer be denied. For example, it has been proven beyond reasonable doubt that the mass murder at Srebrenica was genocide.” Unfortunately, there is little evidence that people already inclined to denialism and revisionism would be particularly convinced by such a record. Also, the court is set up to adjudicate international criminal law, not to provide a comprehensive telling of history. Those caveats aside, a well-resourced court with investigators trained in forensics and verification, could have a positive mitigating effect on the acute misinformation environment surrounding the current conflict.
Looking Forward
As actors, enablers, sponsors, and bystanders of the Israel-Hamas conflict keep an eye on Prosecutor Khan and the ICC Palestine investigation, a lot will ride on the symbolism of the first case or cases announced. This will take time—the office of the prosecutor will likely put a lot of thought into the optics and packaging of such a geopolitically charged situation.
Though impossible to know at this point for whom the ICC will issue arrest warrants, if at all, some clues as to Khan’s thinking on this question may be found in the first arrest warrants issued in the Ukraine situation: Russian President Vladimir Putin and Russia’s commissioner for children’s rights, Maria Lvova-Belova. The high-profile warrants raised strategic questions—the likelihood of apprehending Putin or Lvova-Belova is much lower than that of a field commander who may be captured in battle. But it was also remarkable because it was an arrest for the leader of a very powerful state that is not party to the court.
In theory, it’s easier to prosecute non-state actors—the court has pretty much only done that so far. In that sense, Hamas’s leaders should be much easier to investigate and prosecute than Israel’s, and the first arrest warrants may very well reflect that dynamic—especially if identification is feasible and the violations clear. But with allegations of war crimes mounting on both sides, the ICC will likely tread carefully to avoid the appearance of doing Israel’s bidding by only prosecuting Hamas. Arrest warrants heavily favoring one side of the conflict could risk a legitimacy crisis and backlash. Such complex politics counsel against acting too hastily.
Since the outbreak of war, leaders around the world have repeatedly called for a respect for international law and the laws of war, and in the cases in which that respect is violated, accountability for those violations. For those who seek accountability for alleged war crimes, there’s already a mechanism, albeit flawed, in place—the ICC investigation into the situation in Palestine.
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