To sign this letter, please do so at this link.
For the background to this letter, see the Annex beneath the signatures below.

We, the undersigned scholars and practitioners of law, international relations, and politics express our grave concern over the integrity of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). The conduct of the OTP under Karim Khan’s mandate has prompted urgent concerns about its adherence to impartiality and non-discrimination. During the mandate of former chief prosecutor Fatou Bensouda, the Office has allocated efforts and resources in an attempt to address the fierce criticisms of the OTP’s selective accountability, with a view to correcting the shortcomings that characterized its performance during its early years. Recalling that the criticisms referred-to had contained claims about anti-Global South bias especially in relation to the standards applicable to situation and case selection, we are concerned that the international community is witnessing the erosion of years of dedication to ensure that the ICC is indeed international, impartial, and independent. The possible negative impact that informs our concerns pertains to the future of international criminal justice as a whole, and to the perception that the Court is the last resort for victims of international crimes.

OTP’s Visit to Israel & Palestine: Breach of Impartiality and Non-Discrimination Principles 

The Prosecutor’s Duty of Impartiality and Non-Discrimination 

According to Article 42 (5) of the Rome Statute “neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence.” Confidence in the independence of the Prosecutor is reliant on upholding impartiality and non-discrimination, among other principles.

In accordance with the ICC Code of Conduct for the Office of the Prosecutor, the OTP and all its members are guided by principles of independence; professional ethics and integrity; fair, impartial, effective and expeditious investigation and prosecution; non-discrimination against individuals or groups of individuals, among others. Impartiality, one of the core principles governing the work of the OTP, includes “refraining from expressing an opinion that could, objectively, adversely affect the required impartiality, whether through communications media, in writing or public addresses, or through any other actions outside the context of the proceedings before the Court”. As such, the OTP should conduct their internal and external dealings impartially, abstain from being directly or indirectly in conflict with the discharge of their official duties, and uphold the highest standards of integrity.

The ICC Prosecutor, as an international civil servant, is contractually required to comply with the relevant standards of conduct, inter alia, the ICSC Standards of Conduct for the International Civil Service. These stipulate the need of international civil servants to “work without bias with persons of all nationalities, religions and cultures; it calls for constant sensitivity as to how words and actions may look to others. It requires avoidance of any expressions that could be interpreted as biased or intolerant.” In reaffirming the principle of non-discrimination, the Standards of Conduct reiterate that “[i]nternational civil servants are expected to respect the dignity, worth and equality of all people without any distinction whatsoever”.

The Prosecutor’s Public Communications visit 

During the course of Khan’s mandate thus far, there have been a number of questionable decisions on the Situation in Palestine. These include considerable delays, lack of responsiveness, as well as policies of understaffing and under-resourcing. No more problematic is Khan’s latest meetings, visit and subsequent statement. The Court announced on 30 November 2023 Prosecutor Khan’s visit to Israel at the invitation of victims, after having met with some of them in the Hague previously. In doing that, the Prosecutor has neglected the longstanding pleas from UN special rapporteurs, scholars and international lawyers, NGOs, and Palestinian victims who have ardently requested the Prosecutor’s visit to Palestine and meetings in the Hague for years. The Prosecutor explicitly asserted that the visit, which was carried out without a publicly accessible agenda or transparent funding, is non-investigative, and intended solely to express sympathy and engage in dialogue, acts which fall outside of his mandate as a prosecutor. A lack of transparency also shrouded his subsequent visit to Ramallah. These raise serious concern about the OTP’s commitment to its mandate underlying which are the principles of non- discrimination, and impartiality.

The Prosecutor’s statement further demonstrated selective application of international criminal law, and an extralegal interpretation of its principles. While addressing Israel’s conduct of hostilities, Prosecutor Khan refrained from making any conclusive statements at this stage. In this, he followed the Office’s prosecutorial standards and the language satisfying the evidentiary standards specific to each of the investigation’s stages, and adhered to his announcement that the mission was “not investigative in nature.” However, Khan seems to have already concluded that international crimes have been committed by Palestinian armed groups, thereby undermining the fundamental rules, including on the presumption of innocence and relevant standards.

Prosecutor Khan has used alarming extralegal, political notions, in contravention of the ICSC Standards of Conduct. The Prosecutor has used the term ‘terror organization’ to describe a Palestinian armed group . The terms “terrorism” and “terror organizations” appear nowhere in the Rome Statute or international humanitarian law. Further, in some of the Prosecutor’s communications, Khan uses the adjective ‘innocent’ to describe Israeli civilians. While he does not use the same adjective to refer to Palestinians, this choice of extralegal wording – which was popularized in the U.S. “War on Terror” –  insinuates that some civilians deserve more protection than others, and undermines the cardinal principles of international humanitarian law, including the principle of distinction and that civilians cannot be the target of an attack.

In his references to Israeli victims, the Prosecutor has repetitively emphasized the necessity of holding those responsible for the crimes to account. However, when referring to Palestinian victims, he avoids using terms like ‘accountability’ or any equivalent. It appears as if the victims are presented without a corresponding crime or criminal. Notably, he did not make any reference to the risk of genocide in Gaza, which required special procedures under his mandate, despite warnings by the UN and Academic experts. Instead, the Prosecutor has insisted several times on describing Palestinian population and victims in Gaza as civilians “caught in the crossfire”, seemingly concluding that the Israeli military’s conduct of hostilities has respected the principles of “distinction” and “proportionality”. This framing has formed the core of the Israeli official discourse since the 7th of October, but also during the 2014 Gaza War. By adopting it, the Prosecutor seems to have abruptly accepted Israeli officials’ framing, and to have undermined reports on various crimes committed as part of state plans or policies. Further, Prosecutor Khan’s hasty insistence on the “caught in the crossfire” framing stands in opposition to the findings that the Office itself has announced after five years of preliminary examination activities on the 2014 Gaza War, where it found a reasonable basis to believe that members of the Israeli forces have been “intentionally launching disproportionate attacks” and “wilful killing and wilfully causing serious injury to body or health”. Such basis was strongly affirmed in reports by the UN Independant Mission of Inquiry on the 2014 Gaza conflict, among others.

Further, we observe a noticeable acceleration in the work and activity of the Office of the Prosecutor since October 7. While we commend this step, we are concerned that the Prosecutor, in view of his consecutive statements, is acting according to a belief that crimes under the jurisdiction of the Court have taken place only since this date, and is thus “deprioritizing” the crimes that have formed the object of the Office’s activities for almost a decade. We recall the Prosecutor’s controversial “deprioritization” of US personnel conduct in Afghanistan as we observe that Prosecutor Khan has mentioned nowhere in his statements any alleged crimes committed by Israel, including in relation to the West Bank and East Jerusalem. Instead, he consistently maintains that Israel, with its legal experts, “should be able to justify its actions.”

Finally, the Prosecutor’s statement refers to the West Bank and Gaza, while ignoring East Jerusalem. Here it is important to note that in publicizing the Prosecutor’s visit to Israel, the Court posted a photo on X of Prosecutor Khan in occupied and annexed East Jerusalem. Annexation is a grave violation that is supposedly at the center of the Court’s investigations. This lack of foresight in this regard is not acceptable for an office tasked with investigating this context.

In view of this, the prosecutor’s approach to the case of Palestine as exemplified in the extra-legal wording of the statement and the parallel social media publication are in infringement of the prosecutor’s duty to respect the sensitivity of how words and actions may look to others (Para. 14 of the ICSC Standards of Conduct), and poses questions as to whether or not the prosecutor or members of his office were expressing their personal opinion (Para. 9 of the the ICSC Standards of Conduct for the International Civil Service).

Our requests to the ICC’s Assembly of States Parties, 

In leading up to the 22nd Assembly of States Parties to the Rome Statute (ASP), human rights and civil society organizations, including Amnesty International, Human Rights Watch and the Anti-Apartheid Movement, have called on States to vehemently oppose double standards, selective justice, and any obstruction of the ICC’s investigation in the Situation in Palestine. Amnesty International warned that the legitimacy of the Rome Statute and the ICC is in jeopardy due to this approach, while emphasizing that the “ICC’s legitimacy and effectiveness depend on the OTP demonstrating – without fear or favour – that it will pursue accountability equally in all situations, including situations where perhaps only its intervention will ensure that certain crimes, perpetrators or situations are investigated.”

Considering the above, it appears that accountability for grave breaches that constitute international crimes committed in Palestine is unforeseeable under the current Prosecutor’s mandate, his actions and policies, as outlined.

Furthermore, we demand the Assembly of State Parties to:

• Provide adequate political and financial support to the Court, ensure that the Prosecutor disburses resources on the basis of investigative needs as opposed to politically-motivated prioritization, and urge it to expedite its investigation into the Situation in Palestine.
• Investigate the adherence of the Prosecutor’s Office to ICSC Standards of Conduct, particularly in relation to impartiality, and non-discrimination.
• Investigate the conduct of the current prosecutor of the international criminal court, Karim Khan, and take appropriate measures in accordance with the mandate of the Assembly derived from Article 112 of the Rome Statute.

Signed:

1. Raji Sourani, Human Rights Lawyer, Palestinian Center for Human Rights
2. Darryl Li, Associate Professor of Anthropology and Associate Member of the Law School, University of Chicago
3. Dr. Lex Takkenberg, Senior Advisor on the Question of Palestine, Arab Renaissance for Democracy and Development
4. Dr. Luigi Daniele, Senior Lecturer, Nottingham Law School (NTU)
5. Dr. Ata Hindi, Lecturer at Birzeit University
6. Susan M. Akram, clinical Professor and Director, International Human Rights Clinic, Boston University School of Law
7. Dr Alice Panepinto, Reader in Law, Queen’s University Belfast
8. Dr. Shahd Hammouri, Lecturer in Law, The University of Kent
9. Maha Abdallah, Graduate Teaching Assistant & PhD Researcher, Faculty of Law, University of Antwerp
10. Ihsan Adel, Chair, Law for Palestine
11. Mandy Turner, professor of conflict, peace, and humanitarian affairs, University of Manchester, UK
12. Nicola Perugini, Associate Professor, University of Edinburgh
13. Jessica Whyte, Associate Professor of Philosophy, University of New South Wales
14. Laleh Khalili, Al Qasimi Professor of Gulf Studies, University of Exeter
15. Mohammad Shahabuddin, Professor of International Law & Human Rights, University of Birmingham
16. Rania Madi, Law for Palestine
17. Dr.Christopher Gevers, University of KwaZulu-Natal
18. Sadhvi Dar, Reader, Queen Mary University of London
19. Eric Loefflad, Lecturer in Law, University of Kent
20. Dr Marina Velickovic, University of Warwick
21. Jo Bluen, London School of Economics
22. Khalil Dewan, Head of Legal Investigations at Stoke White Law Firm
23. Ryan Glauser, PhD Candidate, University of Michigan
24. Gerhard Kemp, Professor of Criminal Law (UWE Bristol); Extraordinary Professor of Public Law (Stellenbosch University)
25. Randa Naffa, Director, SADAQA
26. Santosh Anand, PhD researcher, City University of London
27. Dr Sheetal Soni (School of Law, University of Kwazulu Natal, South Africa)
28. Felipe Bley Folly, Research Associate, Law Faculty, University of Tuebingen
29. Dr Ruth Sacks, University of Johannesburg
30. Nicola Whitear-Nel, University of KwaZulu Natal
31. Att. Bassam Abu-Rumman. Founder & managing partner at IQSATLAW
32. Suhayfa Bhamjee, University of KwaZulu-Natal
33. Miha Marčenko, PhD, Fellow at the European University Institute
34. Hala Ahed , lawyer & Human rights advocate
35. Prof Salim Vally, University of Johannesburg
36. Dylan Asafo, Senior Lecturer, University of Auckland
37. Emilio Dabed, Lawyer and activist
38. Naoual El Yattouti, PhD student, University of Antwerp
39. Jared Sacks, Teaching Fellow, Columbia University
40. Rasigan Maharajh, Chief Director, Institute for Economic Research on Innovation
41. Saydoon Nisa Sayed, Coordinator of GNRC, South Africa
42. Professor Nicola Pratt, University of Warwick
43. John Reynolds, Associate Professor, Maynooth University
44. Professor Alison MacKenzie, Queen’s University Belfast
45. Nisreen Alaraj, regional advisor on sustainable cities and climate change, freelance consultant
46. Bana Abu Zuluf. PhD Researcher, Maynooth University
47. Dr.Fiammetta Bonfigli, University of Vienna
48. Micòl Savia, International Association of Democratic Lawyers (IADL)
49. Dr Thomas Phillips, Liverpool John Moores University
50. Dr James Allinson, University of Edinburgh
51. Dr. Fiammetta Bonfigli, University of Vienna
52. Micòl Savia, International Association of Democratic Lawyers (IADL)
53. Dr Thomas Phillips, Liverpool John Moores University
54. Dr James Allinson, University of Edinburgh
55. Fausto Gianelli- ELDH European Association of Lawyers for Democracy and Human Rights in the World
56. Dr Lisa Tilley, SOAS, University of London
57. Dr Souheir Edelbi, Lecturer in law, Western Sydney University
58. Dr. Nadia Kornioti, Associate Lecturer, University of Central Lancashire – Cyprus (UCLan Cyprus)
59. Dr Cristina Sáenz Pérez, University of Leeds
60. Reeju Ray , Associate Professor, O.P. Jindal Global University
61. Dr Nicola Palmer, Reader in Criminal Law, King’s College London
62. Rania Muhareb, Irish Research Council and Hardiman PhD Scholar, Irish Centre for Human Rights, School of Law, University of Galway
63. Selbi Durdiyeva, Postdoctoral Fellow, Center for Conflict Studies, Philipps University Marburg
64. Rawan Arraf, Executive Director, Australian Centre for International Justice
65. Danya Nadar, University of Antwerp
66. Alia Gilbrecht, Director of Virtual Exchange and Innovative Partnerships, Head of U.S. Programming and U.S. Fulbright Scholars. (Institution) An-Najah National University in the West Bank, Palestine
67. Mohammad Almoghabat – International Constitutionalization Ph.D. Candidate – Vrije Universiteit Brussels
68. Sahar Francis, director, Addameer prisoner support and human rights association
69. Claudia Saba, Adjunct Professor of International Relations, Blanquerna School of Communication and International Relations, Ramon Llull University
70. Kirsten Larson, PhD researcher at the Irish Centre for Human Rights, University of Galway
71. Asad Kiyani, Associate Professor, University of Victoria Faculty of Law
72. Alreem Kamal, Legal Officer, SLDP
73. Aman, Associate Professor of Legal Practice, Jindal Global University
74. Palvasha Shahab, Visiting Faculty, Department of Social Sciences and Liberal Arts, IBA, Karachi, Pakistani
75. Felipe Chahuan, Instructor del Departamento de Derecho Privado, Facultad de Derecho, Universidad de Chile
76. Fabrizio Clementi Italian jurist – CRED
77. Dr Tom Pettinger, University of Warwick
78. Marcela Chahuán Zedan. Lecturer at Faculty of Law, University of Chile
79. Nicolas Boeglin, Professor of Public International Law, University of Costa Rica (UCR)
80. Kiran Kaur Grewal, Professor of Human Rights, Goldsmiths, University of London
81. Anissa Bougrea, PhD Researcher, Ghent University
82. Thomas MacManus, Senior Lecturer in State Crime, School of Law, Queen Mary University of London
83. Patrick Bond, Distinguished Professor, University of Johannesburg
84. Dr. Saajidha Sader, University of KwaZulu-Natal, South Africa
85. Koenraad Bogaert, Associate Professor, Middle East and North African Research Group (MENARG), Ghent University (Belgium)
86. Dr Thamil Venthan Ananthavinayagan, Adjunct Professor in Law at Woxsen University (India)
87. Marie Ruyffelaere, PhD candidate/ FNRS research fellow, REPI/OMAM, Université libre de Bruxelles, Belgium
88. Samer Aljarousha, practicing lawyer
89. Dr. Oishik Sircar, Professor, Jindal Global Law School
90. Joshua M. Makalintal, University of Innsbruck
91. Dr Simon Robins, Senior Research Fellow, Centre for Applied Human Rights, University of York
92. Sarah Bracke, Professor of Sociology, University of Amsterdam
93. Avishek Konar, Faculty, O.P. Jindal Global University
94. Dr. Lana Sirri, University of Amsterdam
95. Jan Fermon, lawyer at the Brussels (Belgium) bar, secretary general of the International Association of Democratic Lawyers
96. Fatiema Haron-Masoet  Imam Haron Foundation
97. Daniel Stein, Assistant Professor, OP Jindal Global Law School
98. Dr Jaya Josie Adjunct Professor University of the Western Cape
99. José Henríquez Leiva, University of Galway, Ireland
100. Triestino Mariniello, Professor, Liverpool John Moores University
101. Aleta Alston-Toure, Cooperative Member of the Parable of the Sower Intentional Community Cooperative, Members of the National Black Liberation Movement Network (NBLMN)
102. Marie Labussière, postdoctoral researcher, University of Amsterdam
103. Luis Eslava, Professor of International Law, La Trobe University & University of Kent
104. Dr Kevin Hearty, SSESW, Queen’s University Belfast
105. Omar Jabary Salamanca, Co-Director Observatory of the Arab and Muslim Worlds, Université libre de Bruxelles
106. Sujith Xavier, Associate Professor Faculty of Law University of Windsor
107. Mervyn Bennun, Lecturer in Law, Exeter University (retired); Honorary
108. Carles Fernández-Torne, School of Communication and International Relations – Ramon Llull University
109. Amy Strecker, Associate Professor, UCD Sutherland School of Law
110. Beatrice Canossi Irish Centre for Human Rights, University of Galway, Ireland
111. Judy Favish, University of Cape Town
112. Dr. Stephen M. David, retired.
113. Muna Musbah Ahmed Qasem, Practicing lawyer
114. Anastasiya Kotova, PhD candidate, Lund University
115. Emily Jones, Newcastle University
116. Niloufer Bhagwat Advocate Vice President Indian Association of Lawyers
117. Amal de Chickera, Co-Director, Institute on Statelessness and Inclusion
118. Noha Aboueldahab, Assistant Professor of International Law, Georgetown University in Qatar
119. Aziza Kaddouri, Talsa Law Firm, Netherlands
120. Ramy Abdu. Assist. Prof of Law & Finance. Chairman of EuroMed Human Right Monitor
121. Dr Khawla mattar,  independent writer
122. Karinna Fernandez neira, human rights defender, Chile
123. Jeff Handmaker, Associate Professor, Erasmus University Rotterdam, The Netherlands
124. Devanshi Saxena, doctoral researcher, University of Antwerp
125. Dr Haytham Ereifej, Practicing Lawyer
126. Mahmoud Hanafi – Palestine association for human rights
127. Noura Erakat, Rutgers University, New Brunswick
128. Dr Rose Parfitt, Senior Lecturer, Kent Law School
129. Gertrude Lamare, PhD Student, London School of Economics and Political Science
130. Camilo Pérez-Bustillo: Executive Director, National Lawyers Guild (NLG)-San Francisco Bay Area chapter; co-chair, NLG Task Force on the Americas
131. Hans Ulrich Jessurun d’ Oliveira,Professor emeritus, migration law, University of Amsterdam, migration law, University of Amsterdameritus
132. Huwaida Arraf, Human Rights Attorney
133. Jeanne Mirer,  President International Association of Democratic Lawyers
134. Rob Howse, Professor of International Law, NYU Law School
135. Jordan Manalastas, practicing lawyer
136. Oumar Ba, Cornell University
137. Micaela Frulli, professor of international law, Università di Firenze
138. Dr Silvina Sánchez Mera, La Trobe University
139. Yasmin Omar – International Human Rights Lawyer, Director at POMED, DC
140. Luis Carlos Moro Secretario General de Asociación Americana de Juristas
141. Shaheen Khan, MA, North West Unoversity, Potchefstroom
142. Ahmed Raza Memon, Lecturer, Cardiff School of Law and Politics
143. Professor Ziyad Motala, Howard Law School
144. Ahmed Raza Memon, Lecturer, Cardiff School of Law and Politics
145. Edre U. Olalia, Chairperson, National Union of Peoples’ Lawyers (Philippines)
146. Tanvee Nandan, Associate Professor, OP Jindal Global University
147. Dr Amina Adanan, Maynooth University
148. Julie Webb-Pullman, Investigator, Gaza Centre for Human Rights
149. Dr Ntina Tzouvala, Associate Professor, ANU College of Law
150. Vanessa Ramos, President-Asociación Americana de Juristas
151. Halla Shoaibi, Assistant Professor of Law, Birzeit University
152. Lana Habash, practicing lawyer
153. Dr Benjamin Thorne, Lecturer in Law, University of Kent
154. Umut Özsu, Associate Professor, Carleton University
155. Anamika Misra, Teaching Associate, Bristol Law School
156. Dr Cassim PEER Family Practitioner
157. Prof. Máiréad Enright, University of Birmingham
158. Haris Jamil, PhD scholar, University of Melbourne
159. Dr Julia Dehm, La Trobe University
160. Saika Sabir,  Melbourne Law School
161. Marjorie Cohn, Professor Emerita, Thomas Jefferson School of Law
162. Aman, Associate Professor of Legal Practice, Jindal Global Law School
163. Philip M. Horton, Clinical Associate Professor, ASU
164. Suhail Rashid Bhat, PhD Candidate, UNSW
165. Dania Majid, president, Arab Canadian Lawyers Association
166. Dr Martin Clark, Lecturer, La Trobe Law School
167. Laura Betancur-Restrepo, Profesora Asociada, Universidad de los Andes, Colombia
168. Mohsen al Attar, Associate Dean, Xi’an Jiaotong-Liverpool University
169. Sumedha Choudhury, PhD candidate, Melbourne Law School
170. Mohd Nazari Ismail, Professor and Director, Hashim Sani Centre for Palestine Studies, University of Malaya, Kuala Lumpur.
171. Ntombizozuko Dyani-Mhango Professor of International Law, University of Pretoria, South Africa
172. Dr. Daniela Nadj, Senior Lecturer in Law, St. Mary’s University
173. Dana Farraj, Researcher at Birzeit University
174. Professor Dr Helga Baumgarten, Birzeit University. Professor of Political Science (emeritus)
175. Lavinia Parsi, PhD Candidate in Criminal Law at Università degli Studi di Milano and Humboldt Universität zu Berlin
176. Aashita Dawer, Associate Professor, O.P. Jindal Global University
177. Huseyin Disli, WOLAS (Worldwide Lawyers Association), Vice President and Research and Programmes Executive
178. Dr Angela Sherwood, Lecturer in Law, Queen Mary University of London
179. Oreva Olakpe, Research Fellow, Toronto Metropolitan University
180. Parisa Zangeneh, Irish Centre for Human Rights
181. Delphine Feldman,  Teacher
182. Dr Afaf Jabiri, Senior Lecturer/ University of East London
183. Polly Pallister-Wilkins, Associate Professor, University of Amsterdam
184. Usha Natarajan, LPE Faculty Fellow, Yale Law School
185. Charlotte Kates, International coordinator, Samidoun; National Lawyers Guild International
186. Dr Lydia Morgan, Associate Professor, University of Birmingham
187. Dr Talib Jantjes, human rights activist
188. Suzanne Adely, National Lawyers Guild President
189. Prof Willene Holness, School of Law, University of KwaZulu-Natal
190. Mohammad Shafiq, human rights activist
191. Zeineb Bouraoui, lawyer admitted to the Paris and New York bars
192. Lahbib Naaimi, Visiting lecturer & researcher
193. Me MRARI Abdelmajid, Lawyer and director Of AFD International
194. Khaled AL SHOULI, Docteur en droit et avocat, président de One Justices for human Rights
195. Bethany Shiner, Senior Lecturer in Law, Middlesex University
196. Dr Anita Ferrara, Irish Centre for Human Rights, School of Law, University of Galway
197. Abdelkader Berrahmoun, Assistant Professor, Middlebury Institute of International Studies at Monterey, CA
198. Gert Van Hecken, Professor, University of Antwerp
199. Lisa Björkman, Associate Professor, University of Louisville
200. Dr. Arancha (Araceli) García del Soto, Affiliated Faculty at the IIHA, Institute for International Humanitarian Affairs, Fordham University, NYC, US.
201. Netta Amar-Shiff, human rights lawyer
202. Ruby Axelson, Global Rights Compliance
203. Ramez Hayek, LLM Peace Operations, Humanitarian Law, and Conflict, Irish Center for Human Rights
204. Isabela Hümmelgen, PhD candidate at the Legal Studies Department, Central European University
205. Gorana Mlinarevic, human rights lawyer and activist
206. Lepa Mladjenovic, Lila Inicijativa, Belgrade
207. Dr Nikki Godden-Rasul, Senior Lecturer in Law, Newcastle University
208. Mahbuba Kamal, Undergraduate Student, School of Law, BRAC University

Annex: the backdrop of these demands

Nine years at the ICC: Accountability is Still Out of Sight

The Prosecutor opened a preliminary examination on the situation in Palestine in 2015 following the request of the State of Palestine. Following the appointment of Fatou Bensouda, a series of intricate procedures and protracted steps played out, during which Palestinian human rights organizations and victims provided the OTP with thousands of pages of factual and legal analysis and evidence establishing bases to bring concrete cases for war crimes and crimes against humanity, namely persecution and apartheid, the international crimes underpinning the settlements, forced displacement and transfer, pillage, and various other crimes arising out of Israel’s unlawful actions and practices, including the 2014 assault on Gaza and the Great March of Return, the Gaza blockade and siege, grave breaches against Palestinian children, amongst others.

Subsequently, Prosecutor Bensouda, in 2019, concluded that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.” Finally, the ICC Pre-Trial Chamber, in February 2021, declared its jurisdiction over the State of Palestine, being the occupied Palestinian territory (oPt) and encompassing the Gaza Strip and the West Bank, including East Jerusalem, dating back to June 2014 – in line with Palestine’s 12(3) declaration accepting the Court’s jurisdiction in March 2021, Prosecutor Bensouda officially initiated the investigation declaring that the Court’s “investigation will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the Situation since 13 June 2014”. However, since then, the ICC’s engagement with the persistent and well-documented violations of international law in the State of Palestine/oPt has been significantly delayed and sluggish in pace without yielding tangible results for thousands of victims, and under the oversight of the current Prosecutor Khan Karim A. A. Khan.

Differential Treatment of Cases: Comparison with the Situation in Ukraine

A conspicuous contrast emerges when comparing Prosecutor Khan’s conduct in relation to the Situation in Ukraine to other situations involving allegations against certain geopolitical actors. In the latter, Prosecutor Khan issued arrest warrants within a year of opening an investigation. By contrast, the preliminary activities on the Situation in Afghanistan lasted for fourteen years, after which Prosecutor Khan decided to drop the conduct of the U.S. forces from his probe, a conduct that brought back to the legal and public debate platforms some of the serious claims against the Office’s impartiality.

With regards to the Situation in Palestine, the Prosecutor’s engagement and communication with on-the-ground Palestinian human rights organizations and victims have been largely nonexistent 32 months since the investigation began despite numerous submissions and calls by Palestinian, Israeli and international organizations. Further, in a recent report on outreach to victims and affected communities in Palestine, the Court’s Registry delineates the profound disappointment expressed by victims to their legal representatives, noting, “Clients have been profoundly disappointed, even before the current crisis, at the complete absence of the Court.” Such discrepancies prompt questions about procedural reluctance that do not meet the requirements of justice.

Funding Allocation Policies Undermine the Urgency of the Case

While no resources were designated for investigations into the Situation in Palestine in 2022, the mere allocation of approximately one million euro in 2023 signifies progress but raises concerns about its adequacy considering the extensive, intricate, and ongoing grave breaches that may amount to international crimes. The United Nations Special Rapporteur on the situation of human rights in the oPt, Francesca Albanese, has affirmed that the Court’s investigation is “understaffed and under-resourced,” portraying a situation that appears to be at an impasse. In March 2023, Albanese, along with 31 other Special Rapporteurs, voiced apprehension about the state of the investigation and advocated for increased allocation of resources in light of “solid evidence of allegations of human rights violations that may have been committed intentionally and systematically”.