The 1998 Rome Statute, the International Criminal Court's founding charter, states that one of the critical ICC's tasks is that "the most serious crimes of concern to the international community as a whole must not go unpunished." However, under pressure from the US and the European Community, the ICC has avoided opening an investigation into alleged war crimes in Gaza. By doing so, the ICC is not living up to its mandate.
Lawyers for the Palestinians -whose civilian population has been most punished by the ongoing war in Gaza- state that the ICC prosecutor, Fatou Bensouda, has the legal authority to launch an investigation based on a Palestinian request in 2009. However, Bensouda claims that she needs a new Palestinian declaration to do it.
Luis Moreno Ocampo, who was the ICC prosecutor at the time of the Palestinian declaration, supports Bensouda's position. However, The Guardian quotes a former official from the ICC prosecutor's office stating, "They are trying to hide behind legal jargon to disguise what is a political decision, to rule out competence and not get involved."
Moreno Ocampo took three years to decide on the status of the 2009 Palestinian request for an investigation, following the tragic events of the Israeli offensive on Gaza, called Cast Lead. During that time, both the US and Israel intensely pressured him not to allow an investigation, warning him that the future of the ICC was at stake.
According to legal experts, Palestinians were misled in 2009 into thinking that their request for a war crimes investigation would remain open pending confirmation of statehood. However, no investigation was launched after the UN General Assembly (UNGA) voted in November 2012 to grant Palestine the status of non-member observer state.
Although Bensouda initially appeared open to review the standing Palestinian request, in 2010 she issued a statement saying that the UNGA vote made no difference to the "legal validity" of the 2009 request. She has been accused of being under pressure from the US and its European allies (mainly France and the United Kingdom -the ICC's main contributors to the ICC budget- to prevent the investigation.
The Rome Statute established four main international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Those crimes "shall not be subject to any statute of limitations." Furthermore, under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are "unable" or "unwilling" to do so themselves.
The court has jurisdiction over crimes only if they are carried out in the territory of a state party or if they are committed in the territory of a state party or if they are committed by a national of a state party. However, an exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council.
It is conceivable that Israel, to a certain extent Hamas and even the US could be tried under the Rome Statute. In the case of Israel, because it carried out actions that amount to war crimes, and in the case of the United States by lending Israel financial and military support. Palestinians argue that the small number of Israeli civilians killed by Hamas couldn't amount to a war crime.
On January 2013 Israel became the first country refusing to participate in a "universal periodic review" of the human rights records of the UN's 193 member states conducted by the United Nations Human Rights Council (UNHRC).
Palestinian and Israeli human rights groups sharply criticized Israel for its refusal to participate stating that this conduct sets a "dangerous precedent...that could be followed by other states refusing to engage with the UN in order to avoid critical appraisals." Although from a different context, these words could easily apply now to Israel and the US's blocking of any investigation into the ongoing Gaza tragedy.