The Rome Statute that established the Internatıonal Criminal Court (ICC) was opened to signature in 1998 and the ICC became effective in 2002. The main mission of the Court is to put an end to impunity for the perpetrators of the most heinous crimes of international concern, namely genocide, war crimes, crimes against humanity and the crime of aggression. In its original form, the latter was not defined and left to be determined in the future. Although the definition of the crime of aggression was inserted into the Statute in 2010, the earliest date when this crime may fall within the jurisdiction of the ICC will be 2017. However, the Court has power for the remaining three crimes and has exercised it in various instances.
In 2009, the Human Rights Council of the UN, probably the most prestigious and reliable body of the UN, established a fact finding mission on the Gaza conflict with the mandate to investigate violations of international law committed during Israel’s Gaza operation in 2008-2009. The Report (A/HRC/12/48, also known as the Goldstone report) was delivered on September 2009.
Israel’s 2008-09 Gaza operation and its current one had a lot in common and the Report found various violations of international law by Israel including: failure to take feasible precautions in launching attacks, deliberate attacks on civilians and civilian objects, spreading terror among the civilian population, prevention of humanitarian organizations from access to the wounded and medical relief, violation of the principle of proportionality and excessive loss of civilian life, use of prohibited weapons, use of human shields, failure to treat protected persons humanly, destruction of property, collective punishment on the people of Gaza through the blockade. The Gaza Flotilla Mission of the Human Rights Council also found the blockade contrary to international law in 2010 (A/HRC/15/21).
Israeli government agents’ current acts in Gaza might be claimed to be grave breaches of the Geneva Conventions and acts raising individual criminal responsibility under international law like the 2008-09 acts. Therefore, the ICC might have jurisdiction on these acts. Although in 2009 Palestine made and application to the ICC for investigations, the application was rejected simply because Palestine was not regarded as being a “State”. Today the case is different since the UN General Assembly voted overwhelmingly, 138 in favour to only 9 against, to accord Palestine a “non-member observer State” status in the UN in 2012.
In international law, to become a State, no membership of an international organization, including the UN, is needed. Now Palestine can become a party to the Rome statute or accept the jurisdiction of the ICC. This means the Court may exercise its jurisdiction in Gaza and investigate the criminal responsibility of the Israeli officials including the president, prime minister and other top level officials and military commanders even if Israel is not party to the ICC.
In addition, it should also be borne in mind that, although it have failed to ratify so far, Israel is a signatory state of the Rome Statute. Even if Israel is not bound by all provisions of the Rome Statute, it is under a duty to refrain from acts which would defeat the object and purpose of the Statute.
It is for sure that a trial, or even an investigation, of some Israeli officials by the ICC can cause preventive effects for future atrocities. It is known that the Israeli side is extremely sensitive to court proceedings, even national ones’. This is evident in the case of the trial of the suspected perpetrators of the Mavi Marmara (Gaza flotilla) incident in Turkey. Now there is nothing to prevent the Palestinian administration from bringing the alleged criminals before international justice and to hold them internationally responsible.