I
t is clear from Israel’s actions that its aim is to exterminate as many Palestinians as possible and, failing that, to expel Palestinians from Gaza. This is undeniably genocide and ethnic cleansing under international law. Therefore, international law requires that Israeli leaders and soldiers be tried and punished for their crimes.
Israel’s attacks on Gaza over the past three months have made it clear that the Israeli-Palestinian conflict cannot be treated as a matter of politics or foreign policy alone: the long-standing conflict between Israel and Palestine is also a legal issue. For decades, the state of Israel has carried out attacks in violation of the laws of armed conflict and humanitarian law, and has been committing many types of genocidal crimes. The Israeli state officials who have committed these serious crimes must be tried and punished.
The purpose of this article is not to report on Israeli violations; it is beyond the article’s scope to list and verify the crimes committed by Israel. In fact, there is no need to try to find examples in this regard given the clear statements of Israeli officials, especially Prime Minister Netanyahu, indicating that they aim to exterminate the entire population of Gaza. These statements corroborate the moral element of the crime of genocide while the material element is carried out by the actions of the Israeli army.
The article discusses the status of the International Criminal Court (ICC), its jurisdiction over Israel, and the possibility of Israeli officials being tried and punished for the crimes they have committed based on Palestine’s recognition by the court. The article also assesses the possible attitude of Western states towards the investigation and prosecution of Israel by the ICC.
Since its establishment, Israel has overstepped all the bounds of humanitarian law, the laws of armed conflict, and the laws of war, and has committed crimes amounting to genocide. These crimes, especially in the conflicts that began after October 7, 2023 have escalated and are currently undeniable.
The crime of genocide was first defined in the United Nations “Convention on the Prevention and Punishment of the Crime of Genocide,” which was adopted in 1948 and entered into force in 1951. Article II of the convention lists the acts that constitute the crime of genocide. Article II states, “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
According to Article II, the crime of genocide has three elements:
It should be noted that these crimes are committed “with the aim of the total or partial destruction of a national, ethnic, racial or religious group.” The burden of proof for the crime of genocide has been met once the above objective has been established—the number and intensity of the acts committed or the number and intensity of the victims are of little importance. The Israeli attacks of recent months, and the political and administrative decisions indicating the intent of these attacks, are proof that the above elements of the crime of genocide have been established.
Israeli Prime Minister Netanyahu, referring to the Torah, said, “We are the people of light and they are the people of darkness. It is time to unite for a single purpose. We must move forward quickly to achieve victory. With our deep belief in the eternity of the Jewish people, we will fulfil the prophecy of Isaiah against Hamas.” He went on to say, “You must remember what Amalek has done to you, says our Holy Bible. Yes, we remember and we fight,” he said, reminding Israeli soldiers that they are part of a 3,000-year-old Jewish tradition of warfare. 1 Samuel 15:3 writes, “Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.” Similarly, Israeli Defence Minister Yoav Gallant’s statement that he has ordered a complete blockade of Gaza and that “there is no electricity, no food, no fuel” shows that the intention is to completely destroy the people of Gaza.
The Rome Statute, which provides for the establishment of an International Criminal Court for the prevention and punishment of the crime of genocide and which was opened for signature in 1998 and entered into force in 2002, regulates the crime of genocide in a similar way. The statute includes certain categories of crimes such as war crimes, crimes against humanity, ethnic cleansing, and the unlawful use of armed force.
Even putting aside the crimes committed prior to October 7, Israel’s systematic attacks against the people of Gaza over the past eighty days, which include deliberate killings, material and moral torture, maiming, bombing of civilian settlements, hospitals, schools and refugee camps, and deprivation of basic necessities, constitute undeniable evidence that Israel has committed all the above crimes.
There is concrete evidence of acts of genocide and ethnic cleansing. Israel’s aim is to destroy as many Palestinians as possible, to kill them by depriving them of health services and basic needs, or by epidemics, and if all this fails, to expel them from Gaza. This is unquestionably genocide and ethnic cleansing under international law, and Israeli administrators and soldiers must be tried and punished for these crimes.
The ICC, which was established by the Rome Statute, is the international mechanism that is responsible for prosecuting and punishing Israeli politicians, soldiers, and other officials for their crimes. The ICC is the first permanent international criminal court that has been established to try and hold accountable perpetrators of genocide, crimes against humanity, war crimes, and crimes of aggression.
The ICC has jurisdiction over natural persons over the age of 18, and cannot try states or legal entities. However, holding an official position, including that of head of state, head of government, and member of government, does not exclude the ICC’s jurisdiction (Article 27). The ICC Statute does not contain a territorial limitation of jurisdiction. Its temporal jurisdiction applies to crimes committed after the entry into force of the Statute (1 July 2002) (Article 11).
Proceedings at the ICC are initiated by a request from a state party to the statute or the UN Security Council, or by a spontaneous investigation by the prosecutor (Articles 13/b-15, 53). Prosecution of officials of a state not party to the ICC is possible if they commit the abovementioned crimes in a state party to the statute and that state refers the perpetrators to the ICC (Art. 12).
Israel is not a party to the Rome Statute; Israel signed the Rome Statute in 2000, but notified the UN Secretary-General in 2002 that it had renounced its decision to become a party to the statute. It, therefore, does not recognize the jurisdiction of the ICC, and declares that it will not consider the indictments against it. However, the crimes committed by Israel do not take place on its own territory, but on Palestinian territory.
Palestine ratified and acceded to the statute in 2015. “State” status is required to accept the jurisdiction of the ICC (International Criminal Court Rules of Procedure, Art. 44). In 2009, the state of Palestine applied to the ICC Office of the Prosecutor and declared its acceptance of the court’s jurisdiction. After Palestine was granted non-member observer state status at the UN in 2012, the ICC confirmed its jurisdiction over the Palestinian territories in 2015, with effect as of 2014.
On December 20, 2019, the ICC Prosecutor conducted a preliminary examination of the events in Palestine and concluded that there are reasonable grounds to suspect that the events there constitute war crimes under the Rome Statute. Following a request by the prosecutor, on February 5, 2021, the ICC decided that its jurisdiction over the situation in Palestine, a state Party to the Rome Statute, extends to the territories occupied by Israel since 1967. However, it declared that its jurisdiction is limited to acts committed after 2014, the date on which the ICC’s jurisdiction over the state of Palestine commenced.
Following this decision, the ICC ruled that possible cases of war crimes in the West Bank and Gaza Strip, including East Jerusalem, would be admissible. This paved the way for the prosecution and punishment of those responsible for crimes committed by Israel. In fact, the Office of the Prosecutor has an ongoing investigation. Following the attacks that began after October 7, on 29 October, ICC Prosecutor Ahmad Khan invited individuals and organizations, whether parties to the ICC or not, to submit new evidence and allegations relevant to the ongoing investigation. In this context, the Office of the Prosecutor is collecting information such as all kinds of documents and photographs relating to the incident, date, place/location, and damage suffered through the system established during the investigation phase.
In this process, Turkey has made many requests to the ICC. On November 24, a delegation from the Istanbul Bar Association No. 2 applied to the ICC with a dossier of evidence, including documents and photographs proving war crimes, and petitions collected from all over Turkey to punish the suspects who committed war crimes, crimes against humanity, and genocide in the Israeli attacks on Gaza. The delegation’s statement said that it was not enough to submit petitions: the evidence profile included video footage, photographs, witness statements, and victims’ statements. Similarly, the Turkish Bar Association petitioned the ICC against Israel, citing four specific incidents: “Attacks on hospitals and health facilities,” “Bombing of the Palestinian Bar Association,” “Attacks on media workers,” and “Attacks on refugee camps.”
The ICC has jurisdiction over crimes committed by the state of Israel in the Palestinian territories, a fact confirmed by the court. There is also no doubt that the statements and actions of the Israeli authorities over the past three months constitute clear violations of the laws of war and humanitarian law. In this situation, the ICC, whose raison d’être is to prevent such crimes, must act effectively and swiftly.
International conventions and the international law and institutions that have emerged as a result of them will face an important test in the coming months and years. Western states have already failed this test with their unconditional support for Israel’s attacks over the past eighty days, and their human rights discourse has lost all credibility. Unfortunately, there are serious doubts about the ICC prosecutor’s investigation and subsequent trial as well.
It remains to be seen whether the ICC prosecutor will conduct an effective investigation, what the outcome of the investigation will be, and whether the Israeli officials who committed these grave crimes will be prosecuted. International law requires that the arrest warrants are executed by the European states party to the Rome Statute. Thus, the attitude of these states towards the implementation of the decisions of the Office of the Prosecutor and the ICC will be closely monitored in the coming period. If a case is opened, the ICC’s verdict will be monitored and it will be expected to punish the criminals. Yet, the attitude of Western states towards Israel’s crimes casts doubt on the ICC investigation. All in all, the ICC process appears to be another test of the West’s sincerity on the protection of human rights.
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