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Five countries ask International Criminal Court to investigate the situation in Palestinian territories

The International Criminal Court’s prosecutor Karim Khan says his office has received a referral from five countries to investigate whether crimes have been committed in the Palestinian territories as part of Israel’s response to the October 7 Hamas terror attacks.

South Africa, Bangladesh, Bolivia, Comoros and Djibouti submitted the referral, Khan said.

“In accordance with the Rome Statute of the International Criminal Court, a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes,” Khan said in a statement.

He noted that his office was already conducting an investigation on the situation in the Palestinian territories over possible crimes committed since June 2014 in Gaza and the West Bank. The investigation began in March 2021.

“It is ongoing and extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023,” Khan said. “In accordance with the Rome Statute, my Office has jurisdiction over crimes committed on the territory of a State Party and with respect to the nationals of States Parties.”

Both Hamas and Israel have been accused of war crimes as the death toll from the conflict mounts. Israeli attacks on Gaza have killed nearly 11,500 Palestinians since October 7, according to the Palestinian Ministry of Health in Ramallah, which draws on medical sources in the Hamas-controlled enclave. Israel says its airstrikes intend to target Hamas commanders and infrastructure, following the militant group’s October 7 terror attacks which left 1,200 people dead in Israel and saw 240 taken hostage.

Israel’s siege of Gaza has included a near-total blockade of food, water and electricity, with exceptions for what the United Nations has called a “trickle” of humanitarian aid. On Friday however, Israel’s war cabinet agreed to allow two fuel tankers to enter Gaza each day to support water and sewage systems.

The conflict is covered by a complex system of international law developed after World War II, which attempts to balance humanitarian concerns and the military requirements of states.

A UN report said last month said it was collecting evidence of war crimes in the wake of the Hamas attack. The report said Israel may be committing the war crime of collective punishment, after the government of Israeli Prime Minister Benjamin Netanyahu ordered the “complete siege” of Gaza. A number of prominent human rights groups concur with the UN’s assessment.

Earlier this month, Volker Türk, the UN High Commissioner for Human Rights, called the October 7 attacks “atrocities”, saying they – and the holding of hostages – were war crimes.

But he added “the collective punishment by Israel of Palestinian civilians amounts also to a war crime, as does the unlawful forcible evacuation of civilians.”

The South African government has called for a ceasefire between Israel and Hamas. In a statement last month, South Africa’s Department of International Relations and Cooperation accused Israel of war crimes and said “the continual bombardment of civilian targets, the denial of the civilian population of Gaza of water, food, fuel, and electricity is prohibited under International Humanitarian Law and by Geneva Conventions.”

Israeli Prime Minister Benjamin Netanyahu has called accusations that Israel is committing war crimes in Gaza “hogwash.” “We’re deliberately doing everything in our power to target the terrorists, and the civilians – as happens in every legitimate war – are sometimes what are called collateral damage,” he told NBC News on Sunday.

Israel is not a member of the ICC and rejects the court’s jurisdiction. That has not stopped the court from investigating its actions in the occupied Palestinian territories. Fatou Bensouda, then the ICC’s prosecutor, spent five years conducting a “painstaking preliminary examination” and concluded she was “satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.” But no arrests were made, and Bensouda left office in 2021.

Khan has said previously that the acts committed by Hamas on October 7 are “serious violations, if proven, of international humanitarian law.” He also stressed that “Israel has clear obligations in relation to its war with Hamas: Not just moral obligations, but legal obligations… It’s there in the Geneva Conventions. It’s there in black and white.”

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