Photo Credit: UN International Criminal Tribunal for the former Yugoslavia
Karim Asad Ahmad Khan, Prosecutor of the International Criminal Court in the Hague, December 19, 2017.

Karim Asad Ahmad Khan who has served as Prosecutor of the International Criminal Court in the Hague since 2021 told the court staff he would like to “visit Palestine next year,” before deciding whether to pursue an investigation of IDF activities in the Gaza Strip and Judea and Samaria. The ICC confirmed to Kan 11 News that “a visit to Palestine is one of the goals of the prosecutor for next year.”

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It isn’t yet clear how Israel would respond to the visit. While “the state of Palestine” is a member of the ICC, Israel is not, and so far, Israeli officials including Defense Minister Benny Gantz and Prime Minister Yair Lapid have maintained that they won’t permit the ICC to investigate Israeli soldiers.

In this context, it’s important to stress that Khan did not announce that he was planning to visit the curious and non-existing entity “state of Palestine,” only that he would like to.

According to the 1994 Oslo agreements, the Palestinian Authority is not allowed to seek membership in international organizations such as the United Nations and the ICC as long as it has not been officially declared a state. On the other hand, Palestinian statehood was supposed to be bestowed by 1999 at the latest according to the same agreements.

According to the 1998 Rome Statute, the ICC can prosecute individuals––but not states or organizations––for four kinds of crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. To carry out a criminal investigation “in Palestine,” the ICC would have to investigate individual members of the IDF – which Israel will prevent. However, the ICC can indict Israeli officers and demand their extradition, including from countries where they are visiting.

Prosecutor Khan is not likely to be able to visit “Palestine,” since Israel––whether PM Lapid or PM Netanyahu––won’t allow him to get there.

PA spokesman Nabil Abu Rudeineh announced on Tuesday: “We will not allow Israel to escape punishment for the continued crimes it commits against the Palestinian people and their Muslim and Christian holy sites.” He stressed his side’s commitment to international law, and insisted, according to WAFA, that “Israel must comply with international law, end its occupation of the Palestinian territories, and stop its aggression against the Palestinian people, or else it will face sanctions imposed by international law for continuing its occupation and crimes against the Palestinian people.”

Maybe, maybe not.

A bit more disturbing: Beth Van Schaack, US Ambassador-at-Large for Global Criminal Justice, issued a press release on Tuesday on the occasion of the annual meeting of the Assembly of States Parties of the International Criminal Court, that stressed:

First, apprehending fugitives and successfully bringing them to trial is imperative for any Court. The United States is proud to have played a key role in the successful transfer of two fugitives to the ICC who were both convicted of war crimes and crimes against humanity, including sexual violence. The remaining fugitives must similarly face justice. To support the execution of ICC arrest warrants, the United States is continuously updating its own sources of information and working with national authorities and the ICC to locate, and strategize about how to apprehend, fugitives.

This should be a source of concern to Israeli decisionmakers.

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