The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, on 20 December 2019 announced an investigation into war crimes allegedly committed in Palestine by Israeli personnel or members of Hamas and other Palestinian armed groups since 13 June 2014. The allegations include the establishing of illegal West Bank settlements and violations of the law of war by personnel of the Israeli Defence Forces during the 2014 Gaza War, including claims of targeting Red Cross installations. Members of armed Palestinian organizations, including Hamas, were accused of deliberately attacking Israeli civilians and using Palestinians as human shields. Israel is not a member of the ICC and disputes its jurisdiction on the basis that Palestine is not a sovereign state capable of being a party to the Rome Statute, and Israeli Prime Minister Benjamin Netanyahu repeatedly condemned the allegations and investigation. According to ICC chief prosecutor Karim Ahmad Khan, suspected war crimes by Israelis on Palestinian territory and by Palestinians on Israeli territory during the 2023 Israel–Hamas war are within the jurisdiction of the Palestine investigation.
Preliminary investigation and question of jurisdiction
The jurisdiction of the ICC is limited to the territories and nationals of state parties. Israel signed the Rome Statute on 31 December 2000 but did not ratify it. Palestine became a state party with effect from 1 April 2015.
The Palestinian National Authority submitted an ad hoc declaration on 22 January 2009, dated the previous day, accepting the Court's jurisdiction for "acts committed on the territory of Palestine since 1 July 2002." On 3 April 2012 the ICC Prosecutor deemed the declaration invalid because the Rome Statute only permits "States" to make such a declaration and Palestine was designated an "observer entity" within the United Nations (the body that is the depositary for the Rome Statute) at the time.
On 29 November 2012, the United Nations General Assembly passed resolution 67/19, recognising Palestine as a non-member observer state. In November 2013 the Prosecutor concluded that this decision did "not cure the legal invalidity of the 2009 declaration." A second declaration accepting the court's jurisdiction was reportedly submitted in July 2014 by Palestine's Justice Minister Saleem al-Saqqa and General Prosecutor Ismaeil Jabr, but the ICC Prosecutor responded that only the head of state, head of government or minister of foreign affairs has the authority to make such a declaration. After failing to receive confirmation from Minister of Foreign Affairs Riyad al-Maliki during an August meeting that the declaration had been made on behalf of the Palestinian government, the Prosecutor concluded that the declaration was invalid because it did not come from an authority with the power to make it.
In a published opinion in August 2014, the ICC Prosecutor said that, as a result of Palestine's new status, Palestine could now join the Rome Statute. On 2 September 2014, the Prosecutor clarified that if Palestine filed a new declaration, or acceded to the Rome Statute, it would be deemed valid. In December 2014, the assembly of state parties of the ICC recognized Palestine as a "State" without prejudice to any legal or other decisions taken by the court or any other organization. A third declaration was submitted by Palestine on 1 January 2015, dated 31 December 2014, accepting the court's jurisdiction effective 13 June 2014. Palestine acceded to the Rome Statute on 2 January 2015, with effect on 1 April 2015, and the prosecutor accepted Palestine as state party. The court did not make a ruling on the legal validity of this decision.
A preliminary investigation was commenced in 2015. Israel has argued that the court has no jurisdiction because Palestine is not a sovereign state, as Israeli attorney general Avichai Mandelblit argued in a brief released hours before Bensouda's announcement in December 2019.
2019 Bensouda report
According to Bensouda in December 2019, the criteria for a full investigation had all been met, but jurisdiction had not been established. Bensouda stated, "I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip".