Al-Haq, Al Mezan Center for Human Rights and the Palestinian Centre for Human Rights (PCHR) welcome the visit of the International Criminal Court’s (ICC) Prosecutor, Karim A. A. Khan KC, to Rafah crossing between Gaza and Egypt on 29 October 2023. The visit comes after 22 consecutive days of Israel’s relentless attacks on Gaza and the killing of 8,005 Palestinians there, including 3,324 children and 2,062 women, as of 29 October 2023. A further 113 Palestinians, including 35 children, have been killed in the West Bank, including East Jerusalem, by the Israeli military and settlers as of the same day. Around 1,700 people, including at least 940 children, are reported missing in Gaza and presumed to be trapped or dead under the rubble, while over 20,000 Palestinians in Gaza have been injured since 7 October.

In a momentous statement, Prosecutor Khan said: “In Gaza I wanted to meet those who are suffering such tremendous pain, to hear their experiences first hand. And very importantly to promise to them, to give a commitment to them, that their birthright is justice. They own justice and they deserve justice.” The Prosecutor’s visit came just days after Israeli authorities announced the expansion of their retaliatory military aggression, which is expressly aimed at erasing Gaza and reducing it to ‘rubble’. Following his visit to Rafah crossing, the Prosecutor held a press conference in Cairo where he reminded all parties of their obligations under international law.

We applaud Prosecutor Khan’s stark observation that: “They [Israel] have lawyers advising on targeting decisions, and they will be under no misapprehension, as to their obligations, or that they must be able to account for their actions. They need to demonstrate that any attack, any attack that impacts innocent civilians, or protected objects must be conducted in accordance with the laws and customs of war, in accordance with the laws of armed conflict. They need to demonstrate proper application of the principle of proportionality, of protection, and of the principle of distinction”. While we certainly welcome this remark, we underline that due to their scope and intensity, including the persistent and apparent policy of attacking families’ homes, Israeli attacks are not only conducted in blatant violation of the principles of distinction, proportionality and precaution, but are also part of a widespread and systematic attack on Gaza’s civilian population.

Our organizations also commend the Prosecutor’s emphasis on the seriousness of the humanitarian catastrophe currently unfolding in Gaza, which is purely human-made and the result of intentional policies of collective punishment imposed by Israeli authorities on more than two million civilians, half of whom are children. The Prosecutor noted that “there should not be any impediment to humanitarian relief supplies going to children, to women and men, civilians. They are innocents. They have rights under international humanitarian law. These rights are part of customary international law, these rights are part of the Geneva Conventions, and they give rise to even criminal responsibility when these rights are curtailed under the Rome Statute.”

Our organizations have already noted that the decision to cut off supplies of water, food, electricity, medicine and fuel and the use of starvation as a method of warfare to collectively punish Gaza’s civilian population are both clear and blatant international crimes. These crimes were ordered and authorized by the Israeli government, including by the Minister of Defense, Yoav Gallant, and the Minister of National Infrastructure, Energy, and Water, Israel Kantz.

The Prosecutor’s mandate allows his Office to issue arrest warrants even during the active phase of hostilities and while the alleged conduct is ongoing, as evidenced by the issuance of two such warrants in the context of the investigation in Ukraine. In that case, the ICC Pre-Trial Chamber considered that “the public awareness of the warrants may contribute to the prevention of the further commission of crimes”. Accordingly, we call on the Office of the Prosecutor (OTP) to immediately issue arrest warrants for Israeli authorities and military personnel, and particularly for individuals responsible for perpetrating international crimes against children, in conformity with the OTP’s explicit policy. Horrifyingly, the number of Palestinian children killed in three weeks in Gaza is more than the number of children killed in conflict zones globally over the course of a whole year.

Commenting on the Prosecutor’s visit to Rafah crossing, Shawan Jabarin, Al-Haq’s General Director, stated: “The ICC Prosecutor’s visit to Rafah crossing contributes to maintaining what little hope is left in the Palestinian people, and signals a commitment on the Prosecutor’s part to take action, which we hope will be expeditiously undertaken without any further delays”. Prior to the visit, Raji Sourani, PCHR’s General Director, had lamented the Prosecutor’s long inaction in relation to the protection of Palestinian civilians, and observed a failure to hold Israel accountable for crimes under the jurisdiction of the Court that are ongoing for many years, including in relation to Israel’s apartheid, oppression of the Palestinian people, and closure of Gaza.

As his Office continues to carry out the investigation into the situation in Palestine, including the events that occurred on 7 October and those that followed, we recall that this is not a war of religions. Our organizations remain deeply concerned about the lack of any mention of the overarching context within which the current Israeli aggression on Gaza is taking place, including Israel’s 56-year illegal belligerent occupation of Palestinian territory and the 16-year closure and blockade of Gaza—a measure of collective punishment and persecution of more than 2 million people. Any investigation that disregards the larger context within which Israeli violations and crimes are committed would fall short of achieving justice for Palestinian victims. This context is encapsulated in Israel’s 75-year settler colonial apartheid regime denying the Palestinian people their right to self-determination and return. The ongoing escalation of hostilities epitomizes the failure of the international community to hold Israeli authorities accountable for their blatant international crimes and gross human rights violations, and demonstrates that unless the root causes are clearly addressed, the cycle of violence will continue at the expense of civilian lives.

Since the investigation into the Situation in Palestine opened in March 2021, we have called on the Prosecutor to visit Palestine, including Gaza, and to set up a country office or a regional field office to expedite the investigation. We reiterate that as of 13 October 2023, our organizations are unable to conduct field work or document the apparent horrific crimes being perpetrated in Gaza. We urge the OTP to insist that it be granted access to the occupied Palestinian territory to conduct an independent, on-site investigation into all international crimes committed since 13 June 2014, which come under its jurisdiction, including those since 7 October 2023. In any case, inability to access the territory should not preclude the OTP from investigating the situation in Palestine, hence, we urge the OTP to expedite its remote investigation into crimes related to Israeli settlements in the occupied West Bank, including East Jerusalem, and crimes against humanity, including apartheid and persecution, amongst others. 

Finally, we call on the Prosecutor of the ICC to:

1. Investigate and prosecute international crimes by the Israeli authorities and military since 7 October that have been orchestrated across the occupied Palestinian territory, as a matter of priority, including crimes committed against or affecting children;
2. Visit the Gaza Strip to record the crimes committed therein, to prevent further crimes, including through issuing statements of deterrence;
3. Immediately issue arrest warrants for the cases of international crimes committed by Israeli authorities and military personnel across the occupied Palestinian territory since 13 June 2014;
4. Open a country office or a regional office to expedite the investigation into the situation in Palestine, and, operating under Part 9 of the Rome Statute, call upon Jordan and Palestine, as States Parties to the Rome Statute, and other non-state parties, including Egypt, to cooperate with your Office in this regard, and in arranging an urgent visit to Palestine, especially to Gaza;
5. Remind all states to align their positions on the current situation with their obligations in international law, particularly international humanitarian law, and refrain from aiding and abetting the commission of international crimes;
6. Ensure that the Situation in Palestine is fully resourced with an increased budgetary allocation to ensure the viability of the investigation;
7. Take any appropriate action within the confines of the exercise of the Prosecutor’s mandate under the Rome Statute to prevent and deter Israeli officials and forces from committing more atrocity crimes against the Palestinian people.