Impartial International Justice Mechanisms—Together with International Support—Needed for Accountability for Crimes in Israel–Palestine Conflict

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The International Criminal Court, as part of a broader system of justice pathways, has an essential role to play in delivering accountability for the serious international crimes committed by all parties in Israel and Palestine. Whether it will be able to do so depends largely on the will of the international community to support impartial and independent justice.

On October 29, 2023, the International Criminal Court (ICC) prosecutor, Karim A. A. Khan, delivered a statement from the Rafah border crossing between Gaza and Egypt.[1] Earlier that month, on October 7, Hamas and other Palestinian armed groups breached the fences separating Gaza and Israel, killed an estimated 1200 people, most of them civilians, and took more than 230 people hostage.[2] There is no justification for the war crimes[3] the groups committed.

Israel then launched an aerial campaign in Gaza, unprecedented in intensity,[4] and cut off essential services, including water and electricity, to Gaza’s population. Israeli authorities blocked the entry of all but a trickle of fuel and critical humanitarian aid.[5] They have collectively punished[6] Gaza’s civilian population and used starvation as a method of warfare,[7] war crimes that have no justification.

Khan’s statement—echoing comments he had made to the media since October 7—confirmed that alleged crimes by all parties to the hostilities fall within the scope of the investigation his office has been conducting into the situation of the State of Palestine since 2021. The prosecutor’s presence at the border crossing was a potent visual reminder of the ICC’s essential, independent, and impartial role[8]in upholding the rules-based international order.

A core principle of international law is that atrocities by one party do not justify atrocities by another party. Regrettably, parties are committing serious international crimes[9] within the Court’s jurisdiction in many of today’s crises, including Israel–Palestine,[10] Darfur,[11] and Ukraine,[12] all situations where the Court has investigations underway.

Amid heavy Israeli bombardment since October 7 and the subsequent ground invasion, more than 27,000 Palestinians have been killed in Gaza,[13] according to the Gaza Health Ministry, and more than 100 people kidnapped from southern Israel are still held as hostages.

The prospect of justice should be a deterrent to those who would commit war crimes. This, after all, was a key commitment made in the drafting of the Rome Statute, the ICC’s founding treaty, the Preamble of which asserts a “determin[ation] to put an end to impunity for the perpetrators of [grave] crimes and thus to contribute to the prevention of such crimes.”[14] But the truth is that the appalling loss of civilian lives is the result of past and ongoing crimes[15]and other unlawful actions for which virtually no one has yet been held to account.

For more than sixteen years,[16] Israel has imposed an unlawful closure[17] on the people in Gaza,[18] including a generalized travel ban on all of Gaza’s population, with few exceptions, and sweeping restrictions on the movement of goods. About seventy percent of Gaza’s 2.3 million residents are either refugees who were expelled from or fled their homes in what is now Israel in 1948 or their descendants. They have been denied for decades their right to return to those areas.[19] Before the current hostilities, eighty percent of Gaza residents relied on humanitarian aid. Nearly half of those living in Gaza are children.

For over half a century,[20] Israeli authorities have maintained a military occupation over Palestinians in the West Bank (including East Jerusalem) and Gaza. And there is an emerging consensus within the human rights community[21]—including some of the most prominent Israeli human rights groups—that Israeli officials are committing the crime against humanity of apartheid,[22] as well as the crime against humanity of persecution, against Palestinians.

While the current hostilities are unprecedented in scale,[23] many of the abuses we are witnessing have been committed with impunity for years, including during prior rounds of fighting. During the last major escalation, in May 2021, Human Rights Watch concluded that Israeli forces and Palestinian armed groups had committed war crimes,[24] and some of these patterns are repeating with greater intensity in the current hostilities.

Impunity fuels abuses and hollows out the ability of the law to deter atrocities on its own. As such, there is now more than ever a need for strong support for impartial and independent justice processes[25] to bring accountability for serious crimes by all sides. This means support for international justice institutions, like the ICC; the UN’s Independent International Commission of Inquiry on the Occupied Palestinian Territory,[26] including East Jerusalem, and Israel; the International Court of Justice (ICJ);[27] and prosecutions through national courts under the principle of universal jurisdiction.[28]

The ICC is a court of last resort, meaning it can only intervene when national courts are unwilling or unable to prosecute the very serious crimes listed in the Court’s founding statute. Human Rights Watch research shows that Israeli and Palestinian authorities have failed to credibly investigate and prosecute alleged serious crimes,[29] highlighting the importance of an ICC investigation to fill the accountability gap. Since 2016, Human Rights Watch has urged the ICC to pursue a formal Palestine investigation. In our analysis, the grave nature of many of the violations and the pervasive climate of impunity for those crimes made an ICC investigation necessary.

Though Israel is not an ICC member, the Court is empowered to prosecute individuals for serious crimes committed in or from Palestinian territory, as well as crimes committed by Palestinian nationals, including members of armed groups like Hamas. Palestine joined the Court in 2015 and gave the Court a mandate over serious crimes dating back to 2014. Since the onset of the most recent hostilities, there have been two separate referrals of the situation by ICC member countries to the ICC prosecutor for investigation.

The ICC is not the only pathway to justice. On October 10, 2023, the UN’s Independent International Commission of Inquiry stated that there was “clear evidence” of war crimes in Israel and Gaza and that it would be sharing information with relevant judicial authorities, including the ICC.[30] The U.N. inquiry was established by the Human Rights Council in Geneva.

Governments can also support other credible pathways to accountability for abuses in Israel and Palestine through the principle of universal jurisdiction. In recent years, the national courts and prosecuting authorities of an increasing number of countries, largely in EU member states, have pursued criminal cases under this principle involving war crimes, crimes against humanity, and genocide committed abroad. This means that state judicial or prosecutorial officials can start investigations even though the crimes were committed elsewhere and regardless of the nationality of the perpetrators or victims.

Cases in European courts have involved crimes committed in Syria,[31] Rwanda, the Democratic Republic of Congo, Afghanistan, Iraq, Liberia,[32] and Gambia,[33] among others. Universal jurisdiction cases are an increasingly important part of international efforts to hold those responsible for atrocities accountable, provide justice to victims who have nowhere else to turn, deter future crimes, and help ensure that countries do not become safe havens for human rights abusers.

Our research shows that effective and impartial justice for serious crimes through universal jurisdiction is achievable where there is the right combination of appropriate laws, adequate resources, institutional commitment, and political will.[34]

The International Court of Justice is also examining Israel’s conduct in Gaza.[35] In December, South Africa filed a case before the ICJ alleging that Israel is violating the 1948 Genocide Convention. The case before the ICJ is not a criminal case against individual alleged violators. Rather, the case is “state-to-state” litigation between U.N. member states governed by legal provisions in the U.N. Charter, the ICJ Statute, and the Genocide Convention.

While the case may take many years to reach a final ruling, on January 26, 2024, ICJ judges issued a decision imposing “provisional measures,” or binding orders, that include requiring Israel to prevent genocide against Palestinians in Gaza, enable the provision of basic services and humanitarian assistance, and prevent and punish incitement to commit genocide.[36]

We have called on governments to speak out in support of the ICJ proceedings and to publicly commit to support compliance with the Court’s decision.[37]

The ICJ case and the ICC investigation are likely to influence one another. Indeed, South Africa’s ICJ application references the ICC process numerous times. Each court may apply the findings of the other in its reasoning as their proceedings progress.

There is also a separate related proceeding underway before the ICJ. In December 2022, the U.N. General Assembly requested an advisory opinion from the ICJ on the legal consequences of Israel’s prolonged occupation of the West Bank and Gaza.[38] The General Assembly first asked the ICJ for an advisory opinion related to the Occupied Palestinian Territory twenty years ago. In 2004, the ICJ’s advisory opinion found that the route of Israel’s separation barrier violated international law and that it should be dismantled.[39] The December 2022 request is wider in scope. The ICJ will convene public hearings on the request starting on February 19, 2024.[40]

These multiple pathways hold out promise to break cycles of impunity that are a root cause of the suffering in Gaza, the West Bank, and Israel.

But international law depends on political will for its enforcement. This is particularly true for the ICC, which sits outside the U.N. system and does not have its own police force. Across all ICC situations, a lack of cooperation can stymy progress, from unexecuted arrest warrants all the way to obstruction of Court investigations. It is crucial for governments to press Israeli and Palestinian authorities to cooperate with the U.N. inquiry and the ICC, as they carry out their investigations.

Many ICC member countries have remained silent, however, on the importance of pursuing accountability and impartial justice for both Israeli and Palestinian victims of serious crimes. This stands in stark contrast to the responses of these same governments to war crimes in Ukraine. This has led to perceptions[41] of double standards,[42] putting the ICC’s legitimacy at risk—not because the two situations are necessarily comparable (no two conflicts are), but because many states shouted their support for principles of justice for one, but seemed to forget them for the other.

These double standards have also been at issue in responses to the ICJ case on Gaza. Several states have supported equivalent justice processes before the ICC and the ICJ with regard to charges of genocide in Myanmar but have not spoken up in support of processes addressing the Israel and Palestine situation or highlighted the binding nature of the Court’s orders and the need for compliance. Some have even challenged the legitimacy of the case brought by South Africa to the ICJ. Governments in the Global South and other observers are increasingly calling this out.

We believe that ICC member countries should use every opportunity to publicly speak about the critical role of the Court across all situations on its docket, including in the context of these hostilities. ICC member countries also need to step up[43] their financial, political, and practical support so that the Court can effectively deliver on its global mandate with full independence. Chronic underfunding of the ICC by its member countries risks leaving the Court without the resources to meet its critical workload.

There was recent progress at the December 2023 meeting of ICC member countries.[44] Rather than ignore the situation in Israel and Palestine, no fewer than nineteen states, by our count, spoke openly about the importance of the role of the ICC there during the high-level general debate opening the session. Responding implicitly to the concern about double standards that is anathema to the rule of law,[45] forty-eight countries joined together in a statement during the session declaring that “all victims deserve equal access to justice.”[46]

The absence of accountability in Israel and Palestine would only fuel further abuses, leave victims and survivors without access to justice that is their right, and leave grievances unaddressed. The fact that the ICC and ICJ can play a role here is a step in the right direction, but in order to have impact, they need global support. Supporting legal processes before the ICC and the ICJ does not require taking a position on the underlying allegations. It entails entrusting impartial and independent processes with assessing the facts and determining responsibility and giving victims—all victims—their day in court.