Document Type : Original Article
Author
Master’s Student in Islamic Theology and Islamic Studies and Guidance, Imam Reza International University, Mashhad, Iran
10.30497/hcr.2024.78325
Abstract
The International Criminal Court (ICC), as the first permanent judicial institution for international crimes, plays a pivotal role in prosecuting war crimes, crimes against humanity, and genocide. Nevertheless, the exercise of its jurisdiction in complex conflicts, particularly the Palestine–Israel situation and most notably the Gaza case, has consistently encountered substantial legal and political obstacles. The present study critically examines the Court’s jurisdiction over crimes allegedly committed in the Occupied Palestinian Territory, with particular focus on the Situation in Gaza. This inquiry is significant because the ICC’s effectiveness in one of the longest-standing and most contentious contemporary conflicts serves as a crucial benchmark for assessing the capacity of the international criminal justice system to overcome political impunity. Employing a descriptive-analytical methodology based on documentary and library sources, the research analyses the Rome Statute, decisions and rulings of the Court, statements of the Office of the Prosecutor, and relevant international reports, and scholarly commentary. The central research question is threefold: whether the ICC possesses jurisdiction over crimes committed in the Occupied Palestinian Territory; what legal and political impediments hinder the effective exercise of such jurisdiction; and to what extent that jurisdiction has produced tangible outcomes. The study first elucidates the theoretical foundations of the Court’s territorial jurisdiction, followed by an assessment of Palestine’s statehood under the Montevideo Convention criteria and its membership in international organizations, including the ICC and UNESCO. It then analyses the process of Palestine’s accession to the Rome Statute, the successive Prosecutors’ positions, and the principal legal and political barriers to jurisdiction. The final section offers a critical evaluation of the Court’s handling of the Gaza situation, addressing evidentiary challenges, procedural delays, and institutional performance. Findings indicate that, despite a solid legal basis for jurisdiction, intense political pressure and Israel’s non-cooperation have severely constrained the Court’s effectiveness. Accordingly, enhancing institutional independence, securing stronger international support, and reforming certain procedural mechanisms are recommended as primary measures to bolster the ICC’s efficacy in similar cases.
Keywords