On February 5, 2021, the International Criminal Court (ICC) announced that it has the jurisdiction to open an investigation into alleged war crimes committed by Israel in the “State of Palestine.” On March 3, 2021, the Chief Prosecutor of the ICC Fatou Bensouda announced the launch of a formal investigation. The investigation is to a significant degree the product of consistent and heavy lobbying of the ICC for over a decade by non-governmental organizations (NGOs). These include Human Rights Watch (HRW), Amnesty International, and a number of groups with ties to the Popular Front for the Liberation of Palestine (PFLP) terror group.
The International Criminal Court (ICC), based in The Hague, Netherlands, was established by the Rome Statute in 1998 and began operations in 2002. The ICC is intended to be a court of last resort to punish mass atrocities where domestic judicial systems are unable or unwilling to intervene. It has jurisdiction to try individuals for genocide, war crimes, crimes against humanity, and aggression occurring on the territory of member States or committed by nationals of Member states.
Israel was initially a strong backer of the ICC until the Arab League succeeded in changing the Court’s statute to eliminate terrorism as an offense and, at the same time, define Israeli activity across the 1949 armistice lines as an international crime. Many other countries, including the United States, have refused to join the court because of sovereignty and due process concerns.
Trying Israelis for international crimes in international courts has been a central NGO strategy for 20 years. The NGO Final Declaration of the 2001 UN World Conference against Racism in Durban, South Africa, called for the establishment of a “war crimes tribunal” against Israel “to investigate and bring to justice those who may be guilty of war crimes, acts of genocide and ethnic cleansing and the crime of Apartheid.”
Although Israel is not a party to the ICC and the Palestinian Authority is not a state such that it can legally join the court, ICC prosecution of Israelis has been a primary NGO target. In 2009, the Palestinians tried to join the Court, backed by an intensive NGO lobbying effort. The ICC Prosecutor rejected this attempt in April 2012.
In 2015, the ICC Prosecutor improperly allowed the PA to join the Court (following a November 29, 2012 UN General Assembly decision to admit the Palestinian Authority as a “non-member observer state” at the UN).
In December 2019, the Prosecutor asked the Court to confirm her ability to open an investigation specifically against Israelis. A ruling is expected by June 2020. If the Prosecutor is successful, she could prosecute Israelis for taking measures to prevent Hamas suicide bombings or because Jews live in the Old City of Jerusalem and pray at the Western Wall.
Throughout, NGOs have been central to promoting the Prosecutor’s activities: lobbying the Court to accept the Palestinian Authority, filing complaints, representing “victims,” and submitting briefs. Key NGOs include Human Rights Watch, Amnesty International, FIDH (France), and Palestinian and Israeli NGOs. The European Union, Netherlands, Sweden, Denmark, and other European governments have provided tens of millions of dollars to anti-Israel ICC campaigns and lobbying.