While Israel is not a member of the International Criminal Court (ICC), the court still has jurisdiction over the transgressions it commits in the Palestinian territories and Israelis can be prosecuted for those crimes, according to an international law expert.
Gerhard Kemp, a professor of international criminal law at the University of West England, said that because Palestine is a signatory to the Rome statute, which governs the ICC, the court has jurisdiction over war crimes in Palestinian territories. The ICC can prosecute anyone who commits those crimes, including Israeli soldiers and leaders, even though Israel is not a member of the ICC.
A similar basis was used when the ICC issued a warrant of arrest in March for Russia’s President Vladmir Putin over his role in his country’s invasion of Ukraine. Russia is not a member of the ICC, but Ukraine was then.
On Wednesday, President Cyril Ramaphosa announced that SA had sent a referral to the ICC for an investigation into war crimes in Palestine. The move created confusion because Israel and its main backer, the US, are not signatories of the statutes.
Kemp clarified what this referral means. “SA did not refer Israel to the ICC; this is a referral of the ‘situation in Palestine’ to the ICC,” Kemp said. “The ICC already has jurisdiction on the territory of Palestine (West Bank, Gaza, East Jerusalem) since June 2014. The prosecutor of the ICC opened an investigation into alleged crimes in 2021.”
A referral is not merely an indication of concern, however. It begins various legal mechanisms, Kemp said. If, for example, the prosecutor’s office at the ICC does not proceed with the investigation, “it can then be contested” by SA.
“One can also note the legitimising effect of [such] referrals,” Kemp said. “If SA is joined by other countries in referring the situation in Palestine to the ICC, it will certainly have such a legitimising effect.”
In other words, the ICC is more likely to investigate because the situation will be deemed legitimately worth its time.
Kemp could not comment on SA’s actual referral since the documents are not out yet.
“Palestine itself has already referred the situation to the ICC,” Kemp said, “with reference to the ongoing conflict starting in 2014.”
It is at this stage uncertain what the ICC’s prosecutors will do. However, if the investigation is followed through and crimes are found to be committed, then prosecutions can start and arrest warrants, as with Putin, will be issued.
When asked who could be prosecuted, Kemp said: “Any person, regardless of nationality, who commits these war crimes, crimes against humanity, or genocide within the territory of Palestine can be prosecuted.”
Importantly, however, he said “the ICC can exercise jurisdiction over nationals of state parties who commit these crimes”. This means any “Palestinian national who commits a crime against humanity or war crime on the territory of Israel can also be prosecuted at the ICC even though Israel is not a member of the ICC”.
If eventually convicted by the ICC, the guilty parties could face up to 30 years in jail or life imprisonment.
Kemp noted it is “difficult to say” how long this matter will take.
“A referral by SA and others of the situation in Palestine is important,” Kemp said. “Referring states should also put resources forward to make investigations easier.”
The presidency and his legal advisers did not respond to requests for comment.
MPs on Thursday debated a motion for the closure of the Israeli embassy in SA and cutting diplomatic ties until a ceasefire is called in Gaza.
