Palestine notified the International Criminal Court (ICC) under Article 12(3) of the Rome Statute, stating that it “accepts the jurisdiction of the Court over crimes committed in the occupied Palestinian territory, including East Jerusalem, as of June 13, 2014.” In this context, the ICC ruled in February 2021 that it has jurisdiction over Gaza, the West Bank and East Jerusalem, including the territories of Palestine within the 1967 borders. Thus, it can be stated that the ICC has jurisdiction over the attacks carried out by Israeli soldiers in the Palestinian territories.
The full blockade of Gaza clearly constitutes committing genocide, crimes against humanity and war crimes.
Luis Moreno Ocampo, a former ICC prosecutor, stated that with the complete blockade of Gaza, crimes against humanity and genocide could be considered to have been committed and an investigation could be conducted by the ICC.
Karim Khan, an ICC prosecutor who visited the Rafah border crossing, also emphasized in a recent statement that there is evidence that Palestinian civilians were harmed in Gaza and that war crimes were committed.
Thousands of Palestinian civilians have lost their lives, specifically because of the Israeli bombings of schools, mosques, churches, hospitals and most recently, refugee camps. As a matter of fact, according to the data of the Palestinian Health Ministry, 9,500 people, including over 6,400 women and children, have been brutally killed. In addition, 132 health personnel have lost their lives and 25 ambulances have become unusable since Oct. 7.
The charges against Israel are as follows: Genocide was committed in the context of killing members of a group (6/a) and causing serious bodily or mental harm to members of a group (6/b); crimes against humanity were committed in the context of murder (7/1-a), extermination (7/1-b) and enforced disappearance of persons (7/1-i); war crimes were committed in the context of intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (8/2-b-i), intentionally directing attacks against civilian objects, that is, objects which are not military objectives (8/2-b-ii), attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives (8/2-b-v), intentionally directing attacks against buildings, material, medical units and transport and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law (8/2-b-xxiv), intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives (8/2-b-ix).
The announcement by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) that 29 of its personnel have lost their lives in the Gaza Strip since Oct. 7 as a result of Israeli attacks and the New York-based Human Rights Watch (HRW) stating that videos and eyewitnesses have confirmed that white phosphorus was fired during Israeli artillery shelling of Gaza also point to the commission of war crimes.
Israeli officials, including Netanyahu, could be prosecuted at the ICC for international crimes committed by Israeli forces. According to the Rome Statute, a military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where that military commander or person either knew or, owing to the circumstances at the time should have known, that the forces were committing or about to commit such crimes (28/1).
Netanyahu called on the residents of Gaza under blockade to “leave the area” and stated that they would turn all areas where Hamas is located into rubble, causing many places in Gaza, including schools, hospitals, mosques, churches and even refugee camps to be bombed from the air. In this context, Netanyahu should be accountable for the crimes committed, and that continue to be committed, by Israeli soldiers. The ICC should issue an arrest warrant for Netanyahu as soon as possible.
The ICC, on the application of several European States Parties to the Rome Statute, decided to initiate an investigation into the acts committed by Russian troops in Ukraine, and with the encouragement of the ICC prosecutor Karim Khan and with the support of European states, the investigation process in Ukraine was accelerated and an arrest warrant was quickly issued for Russian President Vladimir Putin for the unlawful and illegal deportation of Ukrainian children and the illegal resettlement of people from occupied Ukrainian territory to Russia.
On the other hand, in the case of Palestine, where there is serious evidence that hospitals, schools, shrines and refugee camps were bombed and more than 9,000 civilians were killed, no arrest warrant yet has been issued for any official within the scope of the investigation. In this regard, the ICC should immediately issue an arrest warrant for Netanyahu and show the world that it is objective in its investigations.
The Rome Statute provides for legitimate defense. However, this defense is not so simple. As a matter of fact, even participation in a defensive operation carried out by military forces does not in itself constitute a reason for the elimination of criminal responsibility (31/1-c). In this framework, the ICC will assess legitimate defense and proportionality in each concrete case. First, the ICC ruled in February 2021 that it has jurisdiction over Gaza, the West Bank and East Jerusalem, covering Palestinian territories within the 1967 borders. Therefore, Palestine always has the right to defend its territories occupied by Israel. In this respect, it is Palestine, not Israel, that has the right to legitimate defense.
Undoubtedly, an important principle of law comes to the forefront at this point: There is no legitimate defense against legitimate defense. However, even if the legitimate defense is accepted, many actions such as the bombing of hospitals, mosques, churches and refugee camps, in addition to the killing of officials acting on behalf of the U.N., clearly show that the boundary was crossed deliberately. Therefore, legitimate defense can no longer be mentioned in view of these acts, and it can be said that all acts committed constitute a crime.
