Introduction
The conflict between Israel and Palestine is complex and multi-faceted. Hundreds of scholars have studied it, and thousands of pages have been written on it. This paper will address this topic from the specific point of view of the International Criminal Court (ICC). Firstly, this report will discuss the ICC’s history and how it works. will then briefly talk about the events that led to the conflict between Israel and Palestine. Thereafter, it will talk about the ICC’s role in the conflict, paying special attention to ongoing investigations and procedures. Finally, it will discuss Israel’s opposition to the ICC’s involvement and the most recent news on the subject.
Before addressing the topic in detail, it is important to clarify that the conflict between Israel and Palestine is evolving daily and needs constant updates. Therefore, this report aims to illustrate how the situation is unfolding at the time of writing.
The International Criminal Court
The ICC was founded in 2002 with the Rome Statute and today includes 123 state-party signatories to the statute. The idea of an international court that could investigate and prosecute the perpetrators of the most heinous crimes drew inspiration from the institution of ad hoc tribunals like Nuremberg and Tokyo. The court has jurisdiction over individuals accused of the most violent crimes, including genocide, crimes against humanity, war crimes, and the crime of aggression. From a scholarly perspective, the ICC provides thorough definitions of these crimes (previously unrecognised), clarifies their constituent elements, and details the circumstances under which they can occur.
Furthermore, it must be noted that the court can decide to initiate an investigation on its own through the Office of the Prosecutor, but it can also investigate cases brought by either its state parties or the United Nations (UN). As mentioned above, the ICC has jurisdiction only over individuals and cannot prosecute sovereign states. Despite this, it can exclusively rely on the cooperation of its state parties: while the court can issue arrest warrants against individuals, it lacks enforcement mechanisms, such as military forces or police, and thus depends on state parties to execute arrests. Finally, it is worth mentioning that the ICC does not have jurisdiction over those individuals living in sovereign states that are not parties to the Rome Statute (Barnett & Dolin, 2002).
Brief description of the events that led to the conflict between Israel and Palestine
Over the last one hundred years, tensions have been high between Israel and Palestine and have often escalated into armed conflicts and wars. The origins of this feud are threefold, including land, borders, and the protection of rights.
At the end of WW2, the area that is now Israel and Palestine was still under British rule, and only around 30 percent of its inhabitants were Jews. In 1947, the UN split the area into two separate Jewish and Arab states without the support of any neighbouring Arab nation, which claimed that the Jews received a bigger portion of territory despite their smaller number. Israel was recognised as a sovereign state by the UN in 1948 (right after the end of British control of the area), and such recognition immediately led to a war between Israel and five Arab nations. The 1967 Six-Day War followed the end of the 1948 conflict, and by its conclusion, Israeli borders took the same shape they still have today, forcing millions of Palestinians to live under Israel’s control in what they claim to be their original land.
Nowadays, disputes between Israel and Palestine are centred around three main areas: the ‘Occupied Palestinian Territories’, including the Gaza Strip, East Jerusalem, and the West Bank, a region between Israel and the River Jordan, housing three million Palestinians.
Involvement of the ICC in the Israel-Palestine conflict
As highlighted at the beginning of this report, the ICC can exercise jurisdiction only over individuals who reside in states that have ratified the Rome Statute and are recognised as sovereign by the international community. Both actors in this conflict pose challenges to the jurisdiction of the court. In fact , although Israel was recognised as a sovereign state in 1948, it has never ratified the Rome Statute, and thus, the ICC has no jurisdiction over its leaders. On the other hand, the state of Palestine is recognised by the ICC and has ratified the Rome Statute, however, it is not recognised by the international community. Furthermore, the Occupied Palestinian Territories, such as the Gaza Strip, do not fall under the jurisdiction of the Court (BBC, 2025).
In particular, Palestine ratified the Rome Statute in 2015, becoming a member of the ICC. Following this ratification, Palestine requested the ICC prosecutor investigate serious crimes committed on its territories or by its nationals since June 2014, thus asking the court to investigate events preceding its ratification of the Rome Statute. Additionally, in 2018, Palestine reaffirmed its commitment to cooperate with the court (Human Rights Watch, 2024).
Conversely, in 2002, Israel withdrew its signature from the Rome Statute, arguing it did not intend to become a court member in accordance with Article 127 of the statute (Benoliel, Perry, 2014). Moreover, it must be noted that Israel and most Western countries, including most EU countries, the US, Canada, Japan, and Australia, do not recognise Palestine as a sovereign state (Ghaedi, 2024).
Considering the complexity of the situation and the conflicts of jurisdiction and recognition, it is understandable why the ICC’s involvement in the conflict between Israel and Palestine was limited in the past. In fact, by addressing the Israel-Palestine issue, the court allowed itself to investigate crimes regardless of where they occurred and to assess its jurisdiction over a non-member state to the court.
Ongoing ICC procedures in the context of the Israel-Palestine conflict
The role of the ICC has changed drastically recently. In 2021, the ICC prompted an investigation into alleged war crimes committed in the Palestinian territories by Israeli soldiers and relevant political figures during the 2014 Gaza War. The chief prosecutor, Fatou Bensouda, who announced this investigation, explained that the Court would act within its jurisdiction in investigating these crimes. The news of such an investigation was harshly criticised by Israeli leaders who accused the court of being biased in prosecuting the Israeli government and ignoring the governments of surrounding states, such as Lebanon or Syria, also guilty of heinous crimes (Beaumont, 2021).
The situation worsened on October 7th, 2023 when the Hamas terrorist group attacked a group of Israeli citizens, killing and kidnapping hundreds of them. As a response to this attack, Israel began a war against Hamas in the Gaza Strip, deploying the military and massive bombardments against the Palestinian population.
In September 2024, a brief filed by Israel challenged the ICC’s jurisdiction to issue warrants or investigate any actions perpetrated during the conflict. The Court rejected Israel’s challenge, and in November 2024, it issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu, at the time, Defence Minister Yoav Gallant, and Mohammed Diab Ibrahim al-Masri (Mohammed Deif), commander of Hamas’ military wing. The accusations were diverse, including, the two Israeli officials being investigated for war crimes and crimes against humanity in the Gaza Strip, also the starvation of civilians, attacks directed against the civilian population, murder, and persecution. The Hamas commander was investigated for extermination, murder, and hostage-taking.
Before addressing the way that the ICC executes arrest warrants, there is one key element that needs clarification: the issue of the court’s jurisdiction in this case. As mentioned before, investigations began in 2021, when the prosecutor, Fatou Bensouda, requested the ICC to have jurisdiction over the situation in Palestine. Bensouda’s request came at the end of a five-year-long preliminary inquiry into the Palestine situation that determined that all the requirements to proceed with a formal investigation had been met.
In particular, the preliminary inquiry argued that an investigation by the ICC was justified by several elements, namely, the fact that war crimes have been or are being committed in Palestinian territories, cases arising from this situation would be admissible in the court, an investigation would serve the interest of justice, and the issue of jurisdiction is protected under the definition of territorial jurisdiction as explained in article 19(3) of the Rome Statute. The concept of territorial jurisdiction is further explored by analysing and applying Article 12(2)(a) of the Rome Statute to the current Palestinian situation. Accordingly, the jurisdiction of the Court comprises the territories of the West Bank, East Jerusalem, and Gaza (ICC, 2019).
A second point addressed by Bensouda is the argument that Palestinian territories do not constitute a sovereign state: according to the Court, since Palestine was granted observer State status in the UN by the General Assembly, it must also be considered a “State” in accessing the Rome Statute (ICC, 2015).
Finally, it is interesting to examine how arrest warrants from the ICC are executed. Since the court does not have its own police force or enforcement bodies, it relies on cooperation from its state parties. Once a state has ratified the Rome Statute, it is under the obligation to fulfil the mandate of the court and either execute arrest warrants, impose sanctions, or freeze assets. States can refuse to cooperate with the court for several reasons. However, non-compliance with the court without a valid reason makes the state liable for sanctions.
Israel’s opposition
Israel has always rejected the ICC’s intervention in the conflict, claiming that the court has no jurisdiction over the country. In a brief report filed in September 2024 addressed to The Office of the Prosecutor, Israel responded to the territorial claims made by Bensouda and demanded the arrest warrants against Netanyahu and Gallant be dropped. In particular, it argued that the definition of territory as presented in Article 12(2)(a) is not met, as ‘Palestine’ does not fulfil the conditions of statehood, and the sovereignty of Palestine is a matter of discussion.
Furthermore, Israel specified that it is entitled to challenge jurisdiction according to Article 19(2)(c) of the Rome Statute; accordingly, the court may exercise jurisdiction only if the state has accepted the jurisdiction of the court. Additionally, Israel mentioned that the Rome Statute allowed it to challenge a decision at the earliest opportunity and argued that it was entitled to make a jurisdictional challenge, as it does not recognise either the statehood of Palestine or the jurisdiction of the court in Palestine’s territory.
Conclusion
This report has provided an overview of the conflict between Israel and Palestine and the role the ICC has been playing between the two opponents. Due to the duration of the conflict, the number of international actors involved, the complexity of the issue, and the territoriality questions, the work of the court has been hindered over the years. Issues of non-recognition of the authority of the Court and jurisdiction disputes have made the work of the ICC difficult. Although the court has tried to mediate between the two parties, its actions were limited, and so far, they have been reduced to the issuing of different arrest warrants against both Israeli and Hamas leaders.
Given the judicial challenges brought against these warrants, it is unlikely that they will be executed. In January 2025, the fighting between Israel and Hamas stopped after 14 months. Nonetheless, the ceasefire is subject to many changes and raised several questions. Many scholars believe that the situation between Israel and Gaza will undergo further crises, but they also believe that the ICC will have a major role as a mediator in the future.
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