On Monday, the Israeli human rights organization B’tselem (The Israeli Information Center for Human Rights in the Occupied Territories) published a devastating report on the systematic torture and ill-treatment of Palestinians detained by Israeli authorities since the Hamas-led attack of October 7, relying on testimonies of more than 50 released detainees. Its title, “Welcome to Hell” is a quote from a soldier speaking to a group of detainees as they arrived in Megiddo prison, which is located inside Israel. This report builds on previous reporting by Amnesty International, also relying on the testimonies of released detainees. One of the most notable media testimonies was that of Mohammed Abu Salmiya, director of Gaza’s al-Shifa hospital, after seven months in Israeli custody. Abu Salmiya’s harrowing account of “almost daily torture” while detained inside Israel presents a complex legal and geographical challenge to traditional notions of the International Criminal Court’s (ICC) territorial reach.
All of these allegations of torture and other forms of cruel, inhuman or degrading treatment – alongside numerous reports emerging as Israel releases other Palestinian detainees – reignite crucial debates about the ICC’s jurisdiction over alleged war crimes in the Israel-Palestine conflict and the Court’s ability to hold alleged perpetrators to account. The fact that Israel transfers detainees from Gaza and the West Bank to face torture and interrogation inside Israel complicates any strict delineation of the jurisdictional boundaries of the ICC’s territorial reach, which covers the State of Palestine as a State Party to the Rome Statute. These accounts reveal, once again, that human rights violations against Palestinians form an intricate, interconnected web spanning the Gaza Strip, the West Bank, and Israel proper, defying neat territorial categorizations.
A recent advisory opinion from the International Court of Justice (ICJ) regarding the legal consequences of Israel’s control of the Occupied Palestinian Territories has further amplified the difficulties in delineating strict territorial lines between the State of Israel and the State of Palestine. Finding that Israel’s control amounts to unlawful annexation, the advisory opinion makes clear that Palestine – recognized as a State by the ICC – is under unlawful control by another State. The interconnectedness of these alleged crimes with territories on both sides of the Green Line presents a challenge and an opportunity for the ICC, underscoring the need for a holistic approach to accountability. By recognizing the inherently transnational nature of these alleged crimes, the Court could potentially bridge the artificial divide between Gaza and Israel, addressing the conflict’s root causes and systemic abuses in a more comprehensive manner.
A Unified System of Alleged Abuses
With respect to Israeli leaders, ICC Prosecutor Karim Khan has chosen to focus the Palestine investigation primarily on starvation-related crimes allegedly committed in Gaza. Yet the mounting allegations of detainee abuse underscore the need for his office to broaden the scope of its investigation. Thousands of detainees from the Gaza Strip and the West Bank have been transferred into Israel, and many of those allegedly abused since the outbreak of the conflict. Under Article 54(1)(a), the Rome Statute allows for such expansion as new evidence emerges, and the torture allegations demand serious consideration.
The ICC’s territorial jurisdiction is established based on the accession of Palestine as a State Party to the Rome Statute, under Article 12(2), and the decision to open an investigation regarding crimes within its territory. The idea is that even though Palestine is occupied, it is has been recognized as a State with a defined territory including the West Bank and the Gaza Strip, where the Prosecutor may conduct investigations in accordance with Article 54(2) of the Rome Statute. Yet this doctrinal solution creates a puzzle when it come to “trans-border” crimes that are partially committed in the territory of the State of Israel.
At the heart of this jurisdictional puzzle lies a stark truth: the Israel-Palestine conflict does not abide by the modern framework of the law of occupation, under which Israel is a sovereign territory that is separate from the Occupied Palestinian Territories of the Gaza Strip and the West Bank. In fact, it operates within a de facto one-State reality over the entire territory of Palestine/Israel, where the territorial lines between occupied and occupier have become increasingly blurred. This colonial reality is reflected not just in the physical control of territory and population, such as restrictions on movement, cultivation of land, and water supply, to name just a few. It is inscribed in the seamless continuum of human rights violations that span both sides of the Green Line, drawn by the Rhodes Armistice Agreements (1949), between the newly established State of Israel and the remaining territory of Palestine, as defined in a 1922 League of Nations’ Mandate.
The jurisdictional framework proposed by the human rights advocacy organizations Public Committee Against Torture in Israel (PCATI) and the International Federation for Human Rights (FIDH) in their 2022 communication to the ICC Prosecutor, which we both consulted them on, offers a lens to view this interconnected landscape of abuse. The communication describes a continuous chain of events, where the initial arrest in the Occupied Territories brings subsequent acts outside that territory within the Court’s purview, mirroring the intricate web of Israeli control and oppression that characterizes the Israeli-Palestinian conflict since 1967. Just as the territories of Palestine and Israel themselves are inextricably linked by a shared history and decades of occupation and settlement, so too are the alleged crimes that span them. The forcible transfer of detainees across borders, the continuity of their mistreatment, and the lasting impact on both individuals and communities, all point to a unified system which defies simple territorial demarcation, a system which one of us has defined as “the one carceral state.”
This framing provides an opportunity to view Abu Salmiya’s and other detainees’ alleged mistreatment not as discrete incidents, but as an unbroken chain of abuse beginning and ending within a single, complex reality in which the ICC’s authority must be asserted holistically. The forcible transfer of detainees from Gaza to Israel, far from being a mere logistical detail, takes on heightened significance. As consultants to PCATI and FIDH, we helped to develop the underlying argument: such deportations constitute a war crime in their own right under the Rome Statute, that of unlawful deportation or transfer of occupied population (Article 8(2)(b)(viii)). As explained in paragraph 117 of the PCATI and FIDH communication, this system is deliberately designed to facilitate more intensive interrogation techniques, such “cyclical sessions including beatings, sleep deprivation, stress positions, painful shackling, sexual and psychological humiliation and abuse, and other techniques, all with the involvement of medical personnel […]” (communication, para. 13). These actions, which occur in specialized facilities, can constitute the crime of torture and similar inhuman acts. As such, both the deportation and the torture itself may constitute criminal acts under Articles 7 and 8 of the Rome Statute, which should not escape international scrutiny and accountability on what has become a territorial technicality. The “trans-border” nature of these crimes further complicates traditional notions of jurisdiction, but it also reflects the lived experiences of Palestinians who find themselves subject to a fragmented yet interconnected system of control that in itself may constitute the crime of apartheid.
Precedent in Trans-border Jurisdiction
The ICC has previously navigated similar jurisdictional complexities, most notably in its investigation of alleged crimes against the Rohingya people, offering a potential precedent for addressing the Israel-Palestine situation. In that case, the Court faced a scenario where Myanmar, like Israel, is not a Party to the Rome Statute. However, the ICC Pre-Trial Chamber ruled that it could exercise jurisdiction over the crime of deportation, which began in Myanmar but was completed when Rohingya refugees crossed into Bangladesh, an ICC Member State. As the Pre-Trial Chamber explained, only “one element of a crime within the jurisdiction of the Court or part of such a crime” must be committed on the territory of a Rome Statute State Party (para. 43). This precedent-setting decision recognized the inherently transnational nature of certain crimes and opened the door for a more flexible understanding of the Court’s territorial jurisdiction.
The parallels to the Israel-Palestine situation are clear, though the movement is in the opposite direction: from Palestine, which is an ICC Member State, to Israel which is not. Additionally, while in the Myanmar case deportation was the only cross border crime, here the crime of deportation is one element of a sequence of alleged crimes, including, and further facilitating torture or inhuman treatment (TIT), as defined in Article 8(2)(a)(ii) of the Rome Statute. Both are differences without a legal distinction relevant to the establishment of jurisdiction, making the Myanmar case applicable to the Situation of Palestine (and whatever differences are relevant between the two allegations concern evidentiary requirements, not jurisdiction). Whereas deportation is by nature a trans-border crime, the trans-border commission of TIT requires proof by evidence: for example, that a sequence of beatings begun in the Occupied Palestinian Territories during the initial arrest, after which the detainee was shackled and blindfolded, while beating or other forms of TIT continued in Israeli territory
The applicability of the Myanmar case rests on two arguments. First, as with deportation, TIT constitutes an unbroken chain of events, with material elements of actus reus in both deportation and TIT perpetrated in the territory of Palestine and continuing into Israel. The violent arrests and transfers of victims mark the beginning of an ordeal that cumulatively amounts to TIT. According to the evidence PCATI and FIDH collected (before the current war), physical violence and threats often start during the arrests and transfers (communication, para. 73), some but not all such arrests have included forms of TIT. Violent arrests preface the violence that awaits the detainees and serves to instill the fear and sense of powerlessness which are part of a process of torture and inhuman treatment in detention facilities, sometimes culminating in (but not separate from) violent interrogations which, together with the arrests, constitute TIT.
In survivor testimony that PCATI has meticulously collected over years before October 2023, detainees often describe the moment in which Israeli security agents declare that they are commencing with “military interrogation” (تحقيق عسكري) (communication para. 13). This is widely understood as the heart of the violent investigation, in which physical violence was invariably intensified. From the viewpoints of interrogator and detainee, this ritual declaration marks a shift in the level of pain inflicted. As physical violence has at this point already taken place going all the way back to the initial violent arrest in the Palestinian Occupied Territories, from a legal point of view the declaration is often but one part of a crime that has already been underway. This is true particularly in those instances when it can be shown that the initial violence during arrest rose to the level of TIT.
Second, even when the initial violence during arrest and transfer do not amount to TIT, the conduct of the arrest in the Gaza Strip and the West Bank and transfer to Israel knowingly enable the subsequent TIT. The transfer, detention, and interrogation inside Israel are neither incidental nor opportunistic. As detailed by PCATI and FIDH (paras. 111-124), arrest following transfer and interrogation inside Israel are an organized and institutionalized course of action that has been developed over years, in which interrogation facilities are intentionally located in Israel. These facilities are staffed by interrogators of the Israeli Security Agency (ISA, also known as the Shin Bet) who are under a chain of command which authorizes TIT under the euphemistic title “Necessity Procedure,” equipped with the physical conditions to carry out violent interrogations (which may involve filthy and dark rooms, equipment for loud music, temperature control, and/or specific chairs). Even when, as in the current case of detentions following the Gaza war, abuse is prevalent in detention facilities even outside the interrogation chamber, the location of these facilities inside Israel is an intentional and organizational State policy that allows for full control of such facilities. The transfer of detainees is therefore an integral and essential component of the torture process, a necessary condition. There may be discussion whether this aspect of planning is part of the crimes of TIT and deportation, or rather an ancillary element, perhaps amounting to joint criminal enterprise, or aiding and abetting, all of which are defined in Article 25 of the Rome Statute. In that case too, however, jurisdiction may be triggered under the theory the Court developed in the investigation of the Situation in Bangladesh/Myanmar.
One may perceive this more flexible understanding of jurisdiction as in tension with the principle of State consent foundational to any treaty, as neither Myanmar nor Israel are parties to the Rome Statute. However, in its February 2021 decision addressing the Court’s jurisdiction regarding the Situation in Palestine, the Pre-Trial Chamber already emphasized that the territorial scope of the investigation is determined based on Palestine’s accession to the Rome Statute, not the other way around (para. 114). In other words, once the Pre-Trial Chamber recognized Palestine for this matter, it is enough that a crime is partly within its territory. This of course does not preclude any additional arguments regarding jurisdiction, which parties and defendants will no doubt continue to present to the Chamber. Indeed, on July 22 the Pre-trial Chamber allowed various parties to make submissions on whether the Court can exercise jurisdiction.
The ICC also has strong policy reasons to maintain this interpretation of acts falling within its jurisdiction. Once jurisdiction is based on State Party territory, any perpetrators committing crimes therein are subject to the Court’s jurisdiction under Article 12 of the Rome Statute. It only makes sense, then, that perpetrators may seek to remove criminal acts out of the Court’s jurisdiction. The intentional and illegal transfer of detainees and prisoners to a location outside the jurisdiction of the Court, by the perpetrators of those crimes, should not be allowed to have this intended effect, as it would enable perpetrators of war crimes (and other atrocities) to escape criminal liability for grave crimes. Especially when such transfers are of detainees who remain under absolute and exclusive control of the perpetrators, the transfer should be seen as an integral part of the alleged crimes and should not have the effect of removing the act from the Courts’ jurisdiction.
This scenario echoes the 2008 decision of the U.S. Supreme Court in relation to Guantanamo detainees in Boumediene v. Bush. Discussing the applicability of Habeas Corpus to detainees intentionally placed outside the formal sovereign territory of the United States (but under its complete control and de-facto jurisdiction), the Court stated: “The test for determining the scope of this provision [Habeas Corpus suspension clause] must not be subject to manipulation by those whose power it is designed to restrain.”
Mounting Evidence and Responses
Israel’s war on Gaza has brought these jurisdictional questions into sharp focus. Israeli human rights groups, including ACRI, Physicians for Human Rights, HaMoked, and PCATI, have petitioned (only available in Hebrew) Israel’s High Court of Justice to close the detention center at the Sde Teiman military base in southern Israel. (The case is still under consideration with some families of fallen IDF soldiers and hostages strongly protesting against the petition, including in the courtroom). The petition cites mounting evidence of severe human rights abuses, including “surgeries performed without anesthesia, holding detainees in painful positions for days, and handcuffing that leads to amputation” (p. 2). These allegations, occurring within Israel proper but inextricably linked to the broader conflict, highlight the artificial nature of attempting to separate abuses based on territorial borders alone.
The Israel Defense Forces (IDF) has responded to these allegations by committing to transfer the detainees to regular prisons, closing the Sde Teiman facility, and establishing an “advisory committee” to examine the conditions of Palestinian prisoners detained amid the Gaza war. This development, deflecting attention from Israel’s new prohibition on International Committee of the Red Cross (ICRC) visits to detainees, raises questions about the effectiveness of internal monitoring and investigations and the need for international oversight that can address the totality of the conflict’s human rights implications.
Recently, on July 29, the Israeli military police arrested for investigation 9 soldiers suspected of severely abusing a Palestinian detainee, from the one of the units operating the Sde Teiman detention facility. The detainee was allegedly violently and sexually abused, requiring medical treatment and evacuation to a hospital following the abuse. As high ranking Israeli politicians and demonstrators from the far right criticized the investigation and tried to block it, Israeli legal officials justified the investigation not only on grounds of the criminal acts, but also as one that can protect Israeli suspects from prosecution by the ICC. These Israeli officials seem to have already assumed that the acts – again, committed inside the territory of Israel – are subject to ICC jurisdiction. They know Israeli authorities act in an unbroken chain throughout Israel and Palestine.
Challenges and Opportunities for the ICC
The interconnectedness of these alleged crimes with territories on both sides of the Green Line presents both a challenge and an opportunity for the ICC. While it complicates questions of jurisdiction, it also underscores the need for a holistic approach to accountability. By recognizing the inherently transnational nature of these alleged crimes, the Court could potentially bridge the artificial divide between Palestine and Israel, addressing the conflict’s root causes and systemic abuses in a more comprehensive manner that reflects the one-State reality of the situation. Holding accountable those responsible for crimes in the region, whether on the Israeli or indeed on the Palestinian side, does not rest on doctrinal grounds alone. It must grow from an experience of the larger pattern of politics that has evolved in the area, a pattern of apartheid.
Yet significant hurdles remain. Verifying claims like Abu Salmiya’s presents evidentiary challenges, particularly for events occurring within Israeli territory. The ongoing conflict, Israel’s non-member status with the ICC, and the strong support Israel enjoys from a permanent member of the United Nations Security Council, creates a politically charged atmosphere that complicates any potential ICC action. Moreover, while the Myanmar precedent offers a potential roadmap, the Court has yet to rule definitively on the validity of these expansive jurisdictional arguments in the context of the Israel-Palestine situation. Finally, it may be the case that the ICC Prosecutor prefers not to go beyond his existing request for arrest warrants. Expanding international criminal procedure against Israeli suspects even further may be perceived as a politically risky choice for the Prosecutor to make.
The ICJ advisory opinion may present additional challenges and opportunities. On the one hand, it should lend more legitimacy to prosecution against Israeli officials. Indeed, the ICJ went as far as finding that Israel is in breach of prohibition of Article 3 (para. 229) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which states that: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” The ICJ finding appears to reinforce our view, the jurisdiction should reflect a continuous reality in Palestine and Israel. On the other hand, how should the ICC interpret territorial jurisdiction over a State that is now considered annexed? With no rule of binding precedent in international law, the ICC is not required to adopt the ICJ finding and may have to conduct its own analysis. Nevertheless, ICJ analysis may very well be held as persuasive precedent. The framework we present offers a way for the ICC to adhere to its mandate and examine jurisdiction over particular crimes while considering the entire territory they span.
In short, the potential expansion of the ICC’s investigation to include torture and related crimes is not merely a matter of legal technicality. It represents an opportunity to address the full spectrum of alleged abuses and to recognize the interconnected nature of the conflict itself. By doing so, the Court could play a crucial role in dismantling the artificial boundaries that have too often shielded perpetrators from accountability and denied victims their right to justice.
As allegations of detainee abuse continue to surface, the legal framework proposed by PCATI and FIDH takes on renewed urgency. Cases like Abu Salmiya’s should force the Court to grapple with fundamental questions about the nature of jurisdiction in an interconnected world, the reach of international criminal law, and the obligations of States to protect the fundamental rights of those in their custody – regardless of which side of the line they happen to fall on.