The International Criminal Court (ICC) was founded in 1998 to investigate and prosecute war crimes, aggression, crimes against humanity and genocide.
It operates as an apolitical failsafe court with an independent prosecutor. 124 states have ratified the Rome Statute underpinning the court, granting it jurisdiction over crimes committed on their territory or by their nationals.
The ICC has opened 17 investigations and issued over 50 indictments. Prosecutors are currently pursuing 12 sensitive investigations in the DRC, Darfur, Libya, Côte d’Ivoire, Mali, Burundi, Myanmar, Afghanistan, the Philippines, Venezuela, Ukraine and Palestine.
The Office of the Prosecutor (OTP) can pursue cases which:
Following a request from the OTP to clarify jurisdiction, the court heard challenges to Palestine’s membership. It subsequently confirmed, in a February 2021 ruling, that the ICC had territorial jurisdiction in Gaza and the West Bank, including East Jerusalem. Of significant relevance was a 2012 UN General Assembly vote granting Palestine a “non-member observer state” status.
The ICC has never charged rank-and-file soldiers, though it has the power to do so. It has a record of charging individuals on opposite sides of a conflict simultaneously and generally charges 2 to 9 people in investigations in which charges are brought.
If the OTP pursues charges against Palestinians, it will likely focus on Hamas leadership, battalion or militia leaders, and individuals responsible for masterminding the October 7 attack.
If the OTP pursues charges against Israelis, it will likely focus on Prime Minister Netanyahu and Israeli ministers responsible for the Gaza campaign and West Bank occupation. The OTP may also charge military leaders and individuals who have engaged in extremist incitement.
Khan has fiercely condemned Hamas for engaging in indiscriminate rocket fire; hostage taking; massacres; sexual violence and executions – each of which is a clear violation of the Rome Statute. The Biden Administration has also issued unequivocal condemnations for these violations of international law.
Khan has signaled a clear intention to prosecute, stating it would be unacceptable for such crimes to go unpunished. His office has sought to work with victims, witnesses, and Israeli authorities. Khan has also noted allegations that Hamas embeds itself within civilian areas and diverts humanitarian aid, charges which may also be pursued.
Prosecutor Khan visited Israel and the West Bank in December 2023, meeting with victims and hostage families. “In both Kibbutz Beeri and Kibbutz Kfar Azza, as well as at the site of the Nova Music Festival in Re’im, I witnessed scenes of calculated cruelty,” he said. “The attacks against innocent Israeli civilians on 7 October represent some of the most serious international crimes that shock the conscience of humanity, crimes which the ICC was established to address.”
Khan has raised ongoing concerns about restrictions on humanitarian aid; attacks on protected sites; West Bank settler and soldier violence; and issues of “distinction, precaution and proportionality” (military targeting rules designed to prevent excessive civilian casualties).
The Biden Administration has raised similar concerns, imposing unprecedented sanctions on violent West Bank settlers, describing Israeli bombings as “indiscriminate” and the humanitarian situation as “unacceptable.” The president has urged the Israeli government to comply with international law, saying “democracies are stronger and more secure when we act according to the rule of law […] We uphold the laws of war. It matters.”
After identifying a suspect and gathering evidence, the OTP can request ICC judges issue either an arrest warrant or a summons to appear voluntarily (if not, an arrest warrant may be issued). To do so, the OTP must demonstrate to the Pre-Trial Chamber there are reasonable grounds to believe the suspect committed a crime within ICC jurisdiction.
If a suspect does not appear voluntarily, the court relies on member states to make arrests and transfer suspects to ICC custody, which they are obliged to do if the individual is present on their territory without applicable immunities. The Obama administration supported the ICC on arrest warrant enforcement, including by offering financial incentives, for the apprehension of certain suspects.
Prosecutor Khan has not disputed Israel’s right to pursue military action and has recognized the challenges Israel faces, while also urging the government to respect international law. The questions at the heart of any case are expected to lie in the manner in which Israel has conducted the Gaza campaign, not the legality of the response itself.
Israeli government actions are subject to the laws of war “notwithstanding any ongoing violations of international humanitarian law by Hamas and other armed groups,” Prosecutor Khan has said. “Conflict in densely populated areas where fighters are alleged to be unlawfully embedded in the civilian population is inherently complex, but international humanitarian law must still apply and the Israeli military knows the law that must be applied,” Khan said.
If the Israeli Attorney General were to open genuine investigations into alleged violations of international law, and demonstrate that authorities were willing and able bring charges if appropriate, proceedings on overlapping issues at the ICC would likely be deferred.
“Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law,” Prosecutor Khan said in December. Credible allegations “should be the subject of timely, independent examination and investigation.”
It is a significant change in rhetoric from the Israeli government in 2000, which signed the Rome Statute and described Israel as a “consistent” supporter of the “importance” and “indispensability” of an international criminal court (the Knesset did not subsequently ratify the treaty).
As a body which prosecutes heads of state and influential leaders, the ICC is no stranger to political attacks and disinformation campaigns. Leaders indicted by the court have repeatedly smeared the ICC as unfair, politicized, racist and/or a tool of Western governments.
Since October 7, Khan has repeatedly called on Hamas to release hostages, condemned the October 7 atrocities, and sought to deter Israeli officials from potential violations with clearly articulated warnings.
“[The acts that we saw on October 7] are repugnant to any person that believes in God,” Khan said, speaking from his personal perspective as a practicing Muslim. “They’re the most un-Islamic acts and cannot be committed in the name of a religion whose very name is peace.”
This makes the ICC far more apolitical than the UN bodies which are dependent on getting majorities of political leaders to agree. It allows the prosecutor to pursue politically sensitive trials, such as the historic cases against the sitting President and Vice President of Kenya.
The ICC is not a UN body and is independent of the UN General Assembly and the Human Rights Council, which have been criticized for disproportionate focus on Israel, often pushed forward by countries seeking to distract from their own atrocious human rights records.
As Benjamin Ferencz, a Jewish-American Chief Prosecutor at the Nuremberg trials and leading advocate for the court has written, “the existence of the ICC must be recognized as a significant step toward a more humane world under the rule of law.”
Disingenuous smears or attacks undermine the court’s important work around the world, deter witnesses, weaken deterrence and do a tremendous disservice to hundreds of thousands of victims who count on the court for justice, accountability and reparations. Threats, intimidation and retaliation may also constitute an offense under Article 70 of the Rome Statute.
While J Street would be deeply concerned if the situation reaches the point of confirmed charges, we encourage the Biden Administration and US lawmakers to treat the prosecutor and judiciary with the respect they would accord to domestic courts. They should reject spurious congressional efforts to undermine or unduly influence the court, engage with judicial filings where appropriate, and push back against undue politicization of this sensitive case.
As President Obama said following the 2010 indictments of political leaders in the Kenya case, officials should “cooperate fully” with the ICC and “let the accused carry their own burdens – and let us keep in mind that under the ICC process they are innocent until proven guilty.”
The campaign to establish the ICC was delayed by the onset of the Cold War. In the intervening years, the Israeli government cooled on the idea, in significant part due to the risk of repercussions for Israeli settlements.
While Prime Minister Ehud Barak signed the Rome Statute in 2000 as peace talks with Palestinian representatives progressed, the Knesset did not ratify the treaty. In a statement, Israel described itself as an “active consistent supporter of the concept of an International Criminal Court” that was “proud” to express its acknowledgment of the “importance, and indeed indispensability, of an effective court for the enforcement of the rule of law.”
“As one of the originators of the concept of an International Criminal Court, Israel, through its prominent lawyers and statesmen, has, since the early 1950s, actively participated in all stages of the formation of such a court,” the statement read. “Its representatives, carrying in both heart and mind collective, and sometimes personal, memories of the Holocaust – the greatest and most heinous crime to have been committed in the history of mankind – enthusiastically, with a sense of acute sincerity and seriousness, contributed to all stages of the preparation of the Statute.”
The United States was also closely involved with the development of the Rome Statute in the 90s and sat as an observer at the Assembly of States Parties under the Obama Administration. Republican administrations have taken a hostile approach to the court over the years, while Democrats have been more supportive.
In 2000, US President Bill Clinton signed the Rome Statute, although Congress declined to ratify it. President Obama supported the ICC in numerous ways, including pressing for the UNSC to refer the situations in Libya and Syria to the court, coordinating with the court to gather evidence and pursue certain perpetrators, and offering rewards for the apprehension of several indicted defendants.
The Bush and Trump administrations sought to undermine the court, with former diplomat and National Security Advisor John Bolton often leading the charge. In 2002, President Bush signed the so-called ‘Hague Invasion Act’ which allows the United States to invade the Netherlands to extract US personnel from ICC custody. His administration also pursued “Bilateral Immunity Agreements” with other nations, in which countries pledged not to comply with ICC warrants against American nationals.
The Trump Administration issued personal sanctions against ICC Prosecutor Fatou Bensouda and other ICC staff in response to the OTP advancing the Palestine investigation. J Street condemned the move as an “appalling new milestone in the administration’s rogue behavior on the world stage.”