Justice Delayed? The ICC’s Response to the Israel-Palestine Conflict

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It has come to news that On 3 December 2023, the Prosecutor of the International Criminal Court finished his first mission to Israel and Palestine. In Israel, the Prosecutor encountered survivors and the families of sufferers of Hamas’ attacks of 7 October; in Ramallah, Palestine, he carried meetings with Palestinian officials and sufferers from Gaza and the West Bank. Since the inception of his mandate in June 2021, the Prosecutor has been somewhat quiet on the Palestine situation, despite his assurance to visit Palestine at the 21st ASP session. 

Yet, from his 29 October visit to the Rafah border ahead, Karim Khan issued media statements and posted an op-ed in The Guardian. While the Prosecutor’s contemporary interest in the Palestine situation is welcome and long overdue, a critical analysis of his course before and after 29 October can direct one to raise questions about double standards persisting with this situation.

Earlier, Karim Khan offered a welcome ability to provide his Office responds promptly to the alleged commission of international crimes. Nevertheless, the lack of significant progress in the Palestine problem has been strongly criticized. While it took the Prosecutor only one year to determine concrete cases in the situation in Ukraine, he has not asked for any warrants of arrest or summons about Palestine and Israel in the two years and a half since he was proclaimed on 16 June 2021, inheriting an extended investigation into the circumstances in Palestine from his predecessor.

Developments suggest that the Palestine situation has not been an emphasis for Khan. It appears that no ICC investigator has ever stayed in Israel or the Palestinian territory. A further indication of the Court’s immobility in the Palestine situation is the allocation of aid, the Office of the Prosecutor allocated no funds to the Palestine situation in 2022.

At this critical moment when the international community is seeing what highly probably amounts to an unfolding genocide in Gaza, the Prosecutor’s steps are crucial. The urgent inquiry is not whether, but how the Israeli-Palestinian problem should be approached by the Prosecutor without either (i) denigrating the integrity of the Court’s mandate, or (ii) forming yet another dangerous precedent of biased (non-)application of international criminal law.

According to civil society organizations in Palestine, despite reiterated requests for dedication to accountability, the Prosecutor ‘never pursued outside money for the ICC’s Palestine examination, never talked about a “crime scene”…, never sought to see Palestine’. Since June 2021, the Prosecutor has not delivered any updates on the Palestine investigation.

The Palestine problem is a reminder of the Court’s role in providing equal access to justice for all sufferers without discrimination, which is particularly important given that Palestinians are already subject to institutionalized discrimination. Parity and non-discrimination as well as the lowest standards of fairness are essential to maintaining the integrity of the Prosecutor’s mandate, and thus the ICC’s overall legitimacy. Independent and honest prioritization of cases would enable the Prosecutor to switch the Court’s low credibility ratings.

By operating in line with his mandate, the Prosecutor would exonerate the Court by affirming its capacity to approach the Palestine crisis just like it would deal with other investigations, which are not resisted by the United States and other strong third States or States Parties to the Rome Statute.

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