International Criminal Court Authorizes Investigation Into Alleged War Crimes in Territory ‘Occupied’ by Israel as a Result of the Israeli-Palestinian Conflict

On Feb. 5, 2021, a Pre-Trial Chamber of the International Criminal Court (ICC) ruled that the ICC’s jurisdiction extends to territory occupied by Israel during the 1967 Six Day War, namely, the West Bank, Gaza and East Jerusalem. The decision, which was made by a divided chamber over a vigorous 154-page dissent, clears the way for the ICC’s Prosecutor to investigate, arrest, and try any individual whom it finds has committed serious violations of international law in those territories. Israel, which is not a party to the Rome Statute (Statute), which created the ICC and governs its jurisdiction, has rejected this decision and its applicability to Israeli nationals, especially Israeli soldiers. The United States, which is also not a party to the Statute, offered similar criticism of this decision, which may have implications for whether it can continue to provide certain kinds of financial assistance to the Palestinian Authority (PA) under U.S. law More importantly, the largely unpersuasive legal basis for the decision to authorize expansive jurisdiction will undercut the ICC’s future effectiveness and legitimacy.

Facts and Procedural Background

The PA accepted the jurisdiction of the ICC in 2015, and referred matters relating to alleged war crimes in the occupied territories to the ICC Prosecutor in 2018 pursuant to Articles 13(a) and 14 of the Statute. The Pre-Trial Chamber (Chamber), after preliminary consultations and fact-finding, received a January 2020 request from the ICC Prosecutor seeking a ruling on the Court’s territorial jurisdiction over the “Situation in Palestine.” The Chamber invited the PA, Israel and victims of alleged war crimes to submit their views on jurisdiction. While the PA did submit a brief, the government of Israel did not (although Israel’s views on jurisdiction were published in a December 2019 public document). The Chamber also allowed various amici curiae, including states, non-governmental organizations, and individual persons (often international law scholars) to submit their views as well. This broader group of submissions included groups both opposing and supporting the ICC’s exercise of jurisdiction.

Decision