The International Criminal Court is opening an investigation into war crimes and crimes against humanity in Israel and Palestine following the October 7 attacks and Israeli military action in Gaza. This may set into motion a process that leads to ICC indictments of Israelis and Palestinians. Joining me to explain what this investigation may look like and how it may unfold is Mark Kersten, Senior Consultant of the Wayamo Foundation and an Assistant Professor of Criminology and Criminal Justice at the University of the Fraser Valley, in British Columbia.
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Transcript edited for clarity
Mark Leon Goldberg: So can you walk us through what that investigation by the ICC might look like? What’s the process? What’s the procedure? What are some of the key inflection points that you’re looking towards in the coming months or weeks ahead?
Mark Kersten: Obviously, no ICC investigator has access to the crime scenes. And I think that’s important to recognize. Mr. Khan has asked to visit Israel and Gaza and Palestine before, and he has been denied the opportunity.
Part of the answer to your question, I think, goes back to your initial question about this visit to the Rafah border crossing. As atrocities are committed in Israel and Gaza right now, we should not gloss over the fact that he was in Egypt. And why? Because if Karim Khan’s office can not gain access to witnesses in Gaza (which he cannot) or witnesses in Israel (which he cannot), then his best bet is actually to speak to witnesses who are coming through an international border. And the only international border that obviously doesn’t lead into Israel is at the Rafah border crossing. I don’t know for sure whether he has an investigation team on the ground in Egypt, but that would be a no brainer place to start in terms of accessing the testimony of people and gathering it as soon as possible.
It’s also, as a side note, really notable that this happened in Egypt because Egypt would have had to have known that the ICC prosecutor is coming to the country. They would have had to negotiate things like security and where he stayed and so on and so forth. And actually, Egypt has been alleged by the ICC in the past of harboring individuals from Libya who had ICC arrest warrants against them. So I’m very curious and I think we need to spend a little bit more time in the future on Egypt’s role and whether Egypt will now be a kind of location for investigations into Palestine.
The prosecutor can also request information from Palestinian factions, including Hamas and Israeli actors, including the IDF. Whether or not they send that information in or not remains to be seen. It’s quite possible, I think, that in these instances we will get the kind of verbal rhetoric or the public facing denial of any cooperation or acceptance of the International Criminal Court by Tel Aviv. All the while, the IDF may actually be sending through intermediaries, through some of its allies, some information or some evidence, which points to the fact that in certain instances, for example, let’s say the Hospital explosion and blast, that it wasn’t in fact them because it may be in their interests to do so without doing it directly and therefore cooperating directly with the ICC. And then there are other ways to investigate these crimes. I think a big focus will be on open source investigations, which haven’t really been tested at the International Criminal Court. But the International Criminal Court is increasingly interested in kind of open source types of investigations and evidence being submitted to the court, especially in the kinds of contexts that we’re talking about now where there literally is no access to the crime scenes on the ground.
So I think it’ll be a whole constellation of factors within each of those within gaining witness testimony from people crossing the border into Egypt, the negotiations to get some of the actual belligerents or people on the ground to submit evidence and information to open source investigations. We can drill all the way down and think about what those things might actually look like, and they get quite complex quite quickly. But the idea is that, you know, if you have these different piles of evidence or information that you’re gathering, that eventually you’ll be able to push them into the middle, understand the command structure of an organization like Hamas, and be able to show that at each level all of this information points to certain people being particularly or especially responsible for certain attacks and then issue arrest warrants for them, which is another interesting feature of thinking through this process, because many of the people that could be eventually targeted by the ICC with respect to Hamas’s atrocities are actually not in Gaza or even Palestine, but in other Gulf states.