The silence emanating from the Prosecutor of the International Criminal Court (ICC), Karim Khan, is growing louder by the hour. Three full days after Hamas perpetrated atrocities inside Israel and took civilian hostages into Gaza, Khan has made no public statement. This is not the norm for a situation over which the ICC has jurisdiction. Compare, for instance, the statement Khan issued within 24 hours after Russia’s full-scale invasion of Ukraine in February 2022. Despite being on Mission in Bangladesh at the time, the Office of the Prosecutor released a public message highlighting that Khan was “closely following recent developments in and around Ukraine with increasing concern.” And, as is common practice for the ICC Prosecutor, he reminded all sides that the Court had jurisdiction over genocide, war crimes, and crimes against humanity.
Of course, one can question the ultimate value of this kind of use of the Prosecutor’s bully pulpit. Whether actors in the midst of conflict – or their sponsors — are actually deterred by such reminders of criminal liability continues to be the subject of much debate. But to fail to remind all parties to a conflict that they are subject to prosecution for international crimes committed within the Court’s jurisdiction abandons, without a whimper, the hope of deterrence that was one of the ICC’s foundational goals. And when the Prosecutor has so consistently issued such statements in situations where the Court has jurisdiction, the absence of similar treatment here is disturbing and creates its own problems for the Court’s legitimacy in other cases involving these parties and beyond.
A statement would be straightforward to fashion. A model statement could read like this:
Draft Model Statement
I have been closely following events related to the violent attacks and taking of civilian hostages by Hamas and associated forces on October 7, 2023. I am deeply concerned about the credible reports of massive violations and the risk of escalating harms to civilians.
As Prosecutor of the International Criminal Court, I urge all parties to avoid committing crimes within the jurisdiction of the Court, and this includes the war crimes of murder, rape, torture and the taking of hostages. I further call on all parties to the conflict to uphold the rules of international humanitarian law. This entails taking all necessary measures to protect civilians, and civilian infrastructure, including schools and hospitals.
I remind all parties that following the accession of Palestine to the Rome Statute, and in accordance with my mandate, my Office has an ongoing investigation, staffed by a fully resourced team, with jurisdiction over occupied areas of Palestine including Gaza. Crimes committed or completed in Gaza are subject to prosecution, including rape and hostage taking, and directing attacks against civilians. I will not hesitate to expand my investigations to cover any new instances of crimes falling within the Court’s jurisdiction, with full respect for the principle of complementarity.
Such statements not only serve the goal of deterrence, of course. They also help shape public thinking and diplomatic discourse. They can empower those who look to clear guardrails amidst the violence.
Certainly there is no exact equivalent within the Court’s remit to the crisis currently underway. The Court’s jurisdiction here emanates from two sources. First, in 2014, the Palestinian government lodged what is known as an Art. 12(3) declaration accepting the ICC’s jurisdiction to prosecute crimes “in occupied Palestinian territory.” This is the same process through which the Court gained jurisdiction to prosecute crimes in Ukraine. Then, in 2015, Palestine joined the Court by acceding to the Rome Statute.
Following a preliminary examination, then-Prosecutor Fatou Bensouda concluded, in 2019, that the statutory grounds for opening a formal investigation into the situation in Palestine were satisfied. Nonetheless, “given the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted,” Bensouda requested the Pre-Trial Chamber to clarify the territory over which the ICC had jurisdiction (under Article 12(2) – the territorial jurisdiction provision of the Rome Statute). Answering only this specific question, a majority of the Chamber concluded in 2021 that “territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem” were within the Court’s territorial jurisdiction.
Put plainly, there is zero doubt that the Court has jurisdiction over genocide, war crimes and crimes against humanity committed by any actor, regardless of nationality, on the territory of Gaza. The Court has studiously avoided wading into the question of Palestinian statehood, and so while it is reasonable to assume that the same rationale the Pre-Trial Chamber used in its territorial jurisdiction decision to treat Palestine like any other signatory to the Rome Statute would also apply with respect to the nationality jurisdiction provision of the Rome Statute (Article 12(3))– that is not a question that the Court has (yet) opined on.
Regardless, even in the event that the Court concluded it did not have nationality-based jurisdiction over Palestinian actors who committed crimes on the territory of a non-State Party like Israel, there is no reason to hold back on reminding all actors of the jurisdiction the Court unequivocally does have. This certainly includes, for example, the hostages that Hamas is currently holding inside Gaza, including war crimes related to the taking of hostages and their treatment.
Perhaps the Prosecutor fears wading through what is a highly charged political terrain. International criminal law is a blunt instrument, poorly equipped to extend the temporal lens back beyond the current moment. Anything he says risks being used by actors on either side to condemn the Court. But silence also sends its own powerful statement. And that is the statement that the Prosecutor should be most concerned about making right now.