ICC progress towards the opening of an investigation into the situation in Palestine

Coalition for the ICC
The ICC Office of the Prosecutor concludes Preliminary examination and seeks ruling on the scope of the Court’s territorial jurisdiction

On 20 December 2019, International Criminal Court (ICC) Prosecutor, Fatou Bensouda, announced that her office has determined that there is reasonable basis to proceed with an investigation into alleged Rome Statute crimes committed in the situation in Palestine.

With this announcement, the Office of the Prosecutor (OTP) concludes a five-year preliminary examination into the situation in Palestine. As a State Party to the Rome Statute since 2015, Palestine formally referred the situation to the ICC Prosecutor on 22 May 2018, and therefore, the Prosecutor does not need to seek authorization from the ICC Pre-Trial Chamber I (PTC I) before proceeding to open an investigation. However, the Prosecutor has requested PTC judges to rule on the Court’s territorial jurisdiction in this situation before proceeding to investigate, citing “the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted”.  

ICC Prosecutor Bensouda explained that she believes that the Court has jurisdiction and that she is satisfied that war crimes allegedly have been or are being committed in the West Bank, including East Jerusalem and the Gaza Strip; that possible cases from this situation would fulfil admissibility requirements before the Court; and that such an investigation would, in fact, serve the interests of justice.

The State of Palestine welcomed the OTP’s decision and stated that "After nearly five years of preliminary examination, the Palestinian people who seek redress in this Court expect actions congruent with the urgency and gravity of the situation in Palestine and they rightly demand that these steps are taken without delay." The statement further reaffirms that “[the State of Palestine] remains committed to upholding its legal obligations as a State Party to the Rome Statute and will continue its steadfast record of cooperation with the Court.

On the other hand, the Israeli Attorney General condemned the decision and stated that “By approaching the ICC, the Palestinians are seeking to breach the framework agreed to by the parties and to push the Court to determine political issues that should be resolved by negotiations, and not by criminal proceedings.”

In an interview by The Times of Israel, ICC Prosecutor Bensouda further stated that “It also bears emphasizing that we have been regularly engaging with representatives from both Palestinian and Israeli authorities throughout the preliminary examination into this situation. This engagement has been constructive and helpful to [my] office’s independent assessment of the statutory criteria under the Rome Statute.” Bensouda added that “I hope that such constructive interactions can continue with the authorities of Israel and Palestine, and we equally look forward to engaging with the media, as appropriate, to ensure that accurate information concerning the work of my office and ICC proceedings is made available in the public interest.”

Michael Lynk, UN Human Rights Council Special Rapporteur for the situation of human rights in the Palestinian territory occupied since 1967 hailed the decision as a "momentous step forward in the quest for accountability". Special Rapporteur Lynk further stated that "In a world that proclaims its devotion to human rights and a rules-based international order, it is vital that the international community defend the decision of the ICC Prosecutor to advance her investigation and to seek a favourable ruling from the Pre-Trial Chamber on the issue of territorial jurisdiction."

The USA Secretary of State, Michael Pompeo, also released a statement, noting that the US “firmly oppose[s] this and any other action that seeks to target Israel unfairly.”

Canada reiterated its position that the country does not recognize a Palestinian state and its accession to the Rome Statute.

Australia and Hungary also re-stated that they do not consider Palestine as a State Party to the Rome Statute and expressed concerns at the ICC Prosecutor’s decision

Many Coalition members have reaffirmed the belief that an investigation is a necessary step towards ending the culture of impunity that has long prevailed in Palestine and in the region, and ensuring peace, security and justice for Palestinian victims.

FIDH and its member organizations in Palestine and Israel, Al-Haq, Al-Mezan Center for Human Rights (Al-Mezan), the Palestinian Center for Human Rights (PCHR), B’Tselem, and the Adalah Legal Center (Adalah) welcomed the ICC’s progress towards a criminal investigation in the situation in Palestine.

“An ICC investigation into the Situation in Palestine would serve as a historic step in renewing victims’ hopes for justice and accountability,” stated Shawan Jabarin, FIDH Secretary-General and General Director of Al-Haq. “Despite a hostile political climate and the measures imposed on the Prosecutor by the Trump administration, we applaud the Prosecutor for her loyalty to the ICC Statute and its principles of full independence and impartiality,” continued Mr. Jabarin.

Adalah – The Legal Center for Arab Minority Rights in Israel immediately stated that "Adalah believes that, based upon the numerous reports of human rights organizations and United Nations commissions of inquiry over the years, the ICC prosecutor has made the right decision given the facts. No other decision could have been possible."

Al-Haq, Al-Mezan Center For Human Rights, and the Palestinian Center for Human Rights (PCHR) published a joint press release to recall their “support [of] the work of the International Criminal Court, as the only avenue for Palestinians to secure justice for Israel’s criminal breaches of international law. Our organisations maintain that only through justice will there be peace in Palestine.” The organizations also question the lengthy delay of the OTP in addressing the essential question on territorial jurisdiction.

Amnesty International called this decision as a historical step towards justice: “This announcement offers a crucial opportunity to break the cycle of impunity for war crimes and crimes against humanity. An International Criminal Court investigation paves the way for the thousands that have suffered as a result of these crimes to finally gain long-overdue access to truth, justice and reparation,” stated Philip Luther, Amnesty International’s Middle East and North Africa Research and Advocacy Director.

Kenneth Roth, Executive Director at Human Rights Watch, in response to the conclusion of the preliminary examination of the Situation of Palestine, said, "The ICC prosecutor’s finding that there is a basis for her office to launch a formal investigation into the situation in Palestine affirms the urgent need for accountability for serious crimes committed there. But Bensouda’s decision to seek guidance from the court's judges nearly five years into her preliminary inquiry means that perpetrators of serious crimes will not face justice at the ICC anytime soon. Palestinian and Israeli victims have faced a wall of impunity for serious violations committed against them for long enough. The prosecutor should have proceeded directly with a formal probe as was within her power to do."


On 1 January 2015, the State of Palestine lodged a declaration under Article 12(3) of the Rome Statute of the ICC accepting the jurisdiction of the Court over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014".

On 2 January 2015, Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General.

On 16 January 2015, the Office of the Prosecutor (OTP) of the ICC opened on its own initiative a preliminary examination into the situation in Palestine.

On 1 April 2015, the Rome Statute entered into force for the State of Palestine.

On 22 May 2018, pursuant to articles 13(a) and 14 of the Rome Statute, the State of Palestine referred the situation in Palestine for investigation to the ICC and specifically requested the Prosecutor "to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court's jurisdiction, committed in all parts of the territory of the State of Palestine".

On 13 July 2018, PTC I ordered the Registry to establish a system of public information and outreach activities for the benefit of affected communities of the situation in Palestine.

On 5 December 2019, the OTP published its annual Report on Preliminary Examination Activities (2019).

On 20 December 2019, the OTP concluded its preliminary examination of the situation in Palestine, and found reasonable basis to proceed with an investigation. The OTP requested PTC I to rule on the Court’s territorial jurisdiction in Palestine.

On 23 December 2019, the OTP filed supplementary information to its request for a ruling on the Court’s territorial jurisdiction in Palestine.