The ICC and the Middle East

Palestine at the ICC

Palestine acceded to the Rome Statute in January 2015, with membership taking effect on 1 April 2015. This gave the ICC potential jurisdiction over crimes committed on Palestinian territory (the West Bank, Gaza, and East Jerusalem) from 13 June 2014 onward, the date specified in Palestine's accompanying Article 12(3) declaration. On 5 February 2021, Pre-Trial Chamber I ruled by majority that the Court's territorial jurisdiction extended to those areas, and Prosecutor Fatou Bensouda formally opened an investigation on 3 March 2021. Israel and the United States strongly contested the ruling, arguing that Palestine is not a sovereign state and therefore cannot delegate criminal jurisdiction to the Court in the first place.

The investigation was framed to cover potential crimes by all parties: Israeli military operations in Gaza, settlement activity in the West Bank, and actions by Hamas and other Palestinian armed groups. Following the 7 October 2023 Hamas attacks and Israel's ensuing military campaign in Gaza, Prosecutor Karim Khan announced in May 2024 that he was seeking arrest warrants for both Israeli and Hamas leaders. On 21 November 2024, the Court issued warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, alongside a warrant for Hamas commander Mohammed Deif; charges against several Hamas leaders were later withdrawn after their deaths were confirmed.

Political Firestorm

The Palestine situation is the most politically sensitive the ICC has ever confronted. Israel is a close ally of the United States and enjoys powerful diplomatic backing. The United States has repeatedly threatened, and in 2025 imposed, sanctions on ICC officials connected to investigations touching Israeli or American nationals. The American Service-Members' Protection Act of 2002, popularly nicknamed the 'Hague Invasion Act,' authorizes the President to use 'all means necessary' to free any American or allied person detained by the Court, a provision aimed squarely at deterring exactly this kind of case.

For the ICC, Palestine is a test of institutional credibility. If the Court can only reach weak states while flinching from situations that implicate powerful states or their allies, the long-standing selectivity critique is confirmed. If it investigates impartially despite intense pressure, it demonstrates the independence the Rome Statute was designed to guarantee. Because the warrants name a sitting head of government of a US-allied democracy, the outcome will shape perceptions of the Court's legitimacy for a generation.

Worked Example: Tracing the Jurisdiction Chain

Understanding why the Palestine investigation is legally contested requires walking through the chain of jurisdictional questions the Court had to answer, in order. Each link is separately disputed:

The key insight is that the ICC only needs territorial jurisdiction, not the consent of every affected nationality, to act. Because alleged crimes occurred on territory the Court accepts as Palestinian, it asserts jurisdiction over anyone who committed them there, including nationals of non-member states such as Israel. This is the same territorial logic that lets the Court reach Russian conduct in Ukraine, and it is precisely why powerful non-members find the Court threatening.

Investigating All Parties

Prosecutor Khan's decision to pursue warrants against both Israeli and Hamas figures in the same application was strategically deliberate. By treating alleged crimes on both sides as within the Court's mandate, he sought to inoculate the investigation against the accusation that it was biased toward or against any single party. The underlying principle is that international criminal law applies to every actor in a conflict, regardless of the justice of their cause or the identity of their allies, a stance the Court also took in its very first cases in northern Uganda, where it pursued rebel LRA commanders. Whether that even-handed framing survives sustained political pressure, non-cooperation, and sanctions on Court personnel is the open question that makes the Middle East situation the defining stress test of the ICC's second quarter-century.