For the first time in its bloody 75 year history, Israel could be facing its most serious legal troubles next year. The Jewish State finds itself facing two of the world’s top legal courts: first, the International Court of Justice (ICJ) is due to give its legal opinion on the nature of the Israeli occupation of Palestinian land in the West Bank, including East Jerusalem, in February 2024. Then, at some point next year, the Occupation State is to face the International Criminal Court (ICC), which has already initiated a criminal investigation into Israeli actions in both the West Bank, including East Jerusalem, and the Gaza Strip.
The request came after the UNGA voted 90 in favour and 8 against, last December, to refer Israel to the Court as the highest UN legal body. The Court is precisely asked to give its legal opinion on several issues including: Israel’s prolonged occupation, annexation of Palestinian Territories, settlement expansion and denial of Palestinians’ right to self-determination, among others. The ICJ sums up the referral as the “Legal Consequences” arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.”
In a practical sense, this means the entire issue of Israeli occupation is, for the first time ever, being scrutinised by the World Court in which all UN members are members by default. The very Israeli occupation is already judged as illegal, a fact accepted by all countries, including the US. On top of that, Israel has never really complied with any UN resolution related to its occupation of Arab and Palestinian land. Even its protector, the US, recognises the fact that occupation is illegal. Yet, occupation “policies and practices” have never before been legally questioned by the ICJ, given its worldwide jurisdiction—the UN’s Court is accepted by all UN member states, including the State of Palestine and Israel—Palestine was admitted to the UN in 2012.
Whatever the opinion of ICJ will be, it is a landmark victory and a turning point for the Palestinian struggle for independence. While the ICJ does not have any power to reinforce its ruling, let alone its opinion, the fact that Israel stands accused before that Court is more than simple legal victory for the Palestinians—it is a case of anti-colonialism in the 21 Century.
The ICJ is expected to face pressure from the US, Israel itself and others who support it, like the United Kingdom. However, its deliberations appear to be straightforward, since the UN has many times described the Israeli occupation as illegal.
But the situation with the International Criminal Court (ICC) Israel could face as soon as next year, is more complicated.
Israel is not party to the ICC, while the State of Palestine is. Israel signed the Rome Statutes establishing the ICC, back in 2000, but never ratified them. Palestine asked the ICC to investigate Israeli crimes in 2017 yet, as soon as the Court said it has jurisdiction over the Palestinian Territories, in March 2021, Prime Minister, Netanyahu, described it as “pure anti-Semitism”, while the US said it “firmly opposes” any investigation of war crimes Israel is accused of committing. This is only one example of the difficulties any ICC investigation, let alone ruling, is likely to face.
Despite all this, ICC’s Prosecutor-General, Karim Khan, on 6 December visited Israel and the West Bank, and issued a statement stating that he is to investigate what has been going on in the Gaza Strip. The statement is the strongest yet from the ICC when it comes to the superiority and applicability of relevant international laws, including the UN resolutions related to the Palestine issue. It is also a very comprehensive opinion of Mr. Khan that no cherry-picking is allowed when it comes to international law. He specifically said, “The law is not some cosmetic adornment that can be disregarded. It’s a fundamental requirement that must be complied with.”
While in Israel, Mr. Khan, met with victims’ families. In the West Bank, he met President Abbas, Prime Minister and the Minister of Health, before meeting victims’ families from both the Gaza Strip and the West Bank. Notably, Israeli officials did not meet Mr. Khan since they do not recognise the ICC’s jurisdiction, but thought that accepting his visit would be helpful to relieve them of public pressure they are facing for their failure, so far, to bring back through war, any of the detainees taken by Hamas when it attacked Israeli on 7 October. Notably, Mr. Khan did not visit Gaza but managed to go to the Egyptian side of the Rafah Crossing, where he spoke publicly. His failure to cross over into Gaza is likely for security reasons, as the war is still raging there.
Israel is also facing another case, that of the murdered Al-Jazeera reporter, Shireen Abu Akleh, who was shot by an Israeli sniper on 11 May, 2022. Indeed, the Court is yet to take any steps to investigate, but might as well proceed in 2024, further increasing the legal burden on the Occupation State.
The ICC process is likely to take a long time but, still, it is most serious to Israel because of its immediate impact, once the ICC decides to indict any Israeli officials. In such a case, it is very likely if Mr. Khan gets to finish his work, as any indicted official will become a fugitive wanted by the Court. Unlike the case with the ICJ, the threat from the ICC is immediate and real.
Some observers believe the ICC venue is too long and, even if it produces tangible results, they are likely to become irrelevant. Instead, they call for special courts, like a regional court, for example, set up by regional countries, away from the UN bureaucracy. Even better, if national jurisdiction becomes transnational when it comes to war crimes and crimes against humanity, where a country could prosecute such crimes even when committed outside its border.
Such a fast track seems impractical, at least for now. It would require broader international consensus, international cooperation and with some shared input from the UN, anyway. All such requirements are missing now. It is also open to political influences corrupting it before it could even start.
The ideal situation would be a regional legal process, where such major crimes could be tried. The model offered by the African Union appears a plausible alternative. In 2011, it cooperated with Senegal and set up an ad-hoc tribunal that prosecuted former Chadian President, Hussein Habre, who was found guilty and sentenced to life imprisonment. Even in that unique case, the Senegal Tribunal needed help from international partners in areas of expertise and funding. It was not a fast one, anyway, as it faced serious legal arguments in Senegal itself and at the continental level.
Legally speaking, Israel is surrounded and cornered. If it will pay the price for its many crimes remains to be seen. But even if no tangible results are produced from all cases, the fact that Israel is in the dock after all the crimes of war, crimes against humanity and its disregard for international law, is a victory for Palestine and beyond.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.