Legal Journals

ICC to Investigate Gaza War Crimes Pending Jurisdiction Review

By pros

This week Palestinian officials traveled to the Hague to press the International Criminal Court to investigate alleged war crimes committed by Israeli forces during the recent violence in Gaza. ICC  prosecutor, Luis Moreno-Ocampo, had originally rejected Palestinian requests for the investigation, on the grounds that the ICC lacked jurisdiction. However, Palestinian officials recognized the court?s authority on January 22 and as a result the prosecutor has agreed to explore whether he has jurisdiction in this case.

The ICC has jurisdiction over any citizen of its 108 member states.  Cases can be brought to the court by individuals, countries, or the UN Security Council. However, neither Israel nor Palestine fall under the traditional jurisdiction of the court because Israel is not a member state and Palestine is not recognized as a sovereign state.  Nevertheless, this past month, the Palestinian Authority presented a declaration to the ICC subjecting itself to the court?s jurisdiction for acts committed on Palestinian territory since the ICC?s authority began in July 1, 2002. A similar declaration gave the court jurisdiction for war crimes committed in Sierra Leone, which is also not a member state.  The jurisdictional review in this case is complicated by allegations that Palestinian officials are attempting to use the court to tacitly recognize Palestinian statehood. A legal expert involved in the case confirmed that the ICC will not deal with issues of Palestinian statehood even if it does investigate the case. 

The ICC has received over 200 complaints from Palestinian citizens alleging that the Israeli military targeted civilians and non-military buildings and illegally used weapons such as white phosphorous. Conversely, Hamas has also been accused of war crimes including indiscriminate rocket attacks on Israeli civilians and the use of civilians as human shields. If the ICC decides it has jurisdiction over this case, both Israeli and Palestinian actions during the war will be subject to investigation and prosecution.

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Full post as published by Harvard International Law Journal Digest on February 15, 2009 (boomark / email).