By Andrew Tucker, Director, thinc.

The Prosecutor of the International Criminal Court (ICC) has for some time been looking into whether Israeli leaders are potentially guilty of war crimes – first, in relation to the conflicts with Hamas in Gaza and, second, in relation to Israeli settlement policies. The Office of the Prosecutor (OTP) has announced that the Prosecutor, Fatou Bensouda, will soon decide on whether or not to open an investigation into the settlements issue. In order to do so, she needs to decide that ’Palestine‘ is a state for the purposes of the Rome Statute that governs the ICC. That is a very contentious issue, and international lawyers are divided on the topic (some say that Palestine is a state because it has been recognized by over 130 states. Others argue that it does not yet have the qualities of a state, such as having an “effective government” and therefore it should not be treated as a state).

The whole case is very contentious; the ICC is under a lot of pressure and criticism because of its failure to date to achieve significant convictions. The USA (which is not a party to the ICC) recently refused the Prosecutor entry into the USA because she was considering opening an investigation into conduct of US leaders in Afghanistan for war crimes. Even though the ICC has since decided not to investigate, President Trump has continued to attack the legitimacy of the ICC, and warned that “any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response”.

Despite the fact that there are many other alleged “occupying powers” and “occupied territories” in the world where the occupier enables or forces its citizens to live in the occupied territory, (e.g. Russia/Ukraine, Turkey/Northern Cyprus), Israel is the only country whose leaders are  being considered possible targets of ICC investigation on the basis that settlements are a war crime. If the Prosecutor decides that Palestine is a state and that she will open an investigation, it will require the ICC to consider many complex legal and factual issues that it has never considered before. For example: do Israeli settlements constitute a “most serious international crime” and a “mass atrocity”, and would a prosecution be a meaningful and realistic way of achieving the ICC’s ultimate goal of promoting “the peace, security and well-being of the people”? Do Israel’s settlement policies since 1967 amount to “transfer or deportation” of population into the “Occupied Territories”? The Prosecutor’s decision has huge implications – for Israel and the Palestinians, but also for the ICC itself and international criminal law in general. We will be monitoring this case in the coming months.

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