ICC prosecutor threatens Israel with potential action over Rafah military operation

“All wars have rules and the laws applicable to armed conflict cannot be interpreted so as to render them hollow or devoid of meaning. This has been my consistent message, including from Ramallah last year,” he wrote.

“Since that time, I have not seen any discernible change in conduct by Israel. As I have repeatedly emphasised, those who do not comply with the law should not complain later when my Office takes action pursuant to its mandate.”

Khan posted the statement on the social media platform X on Monday, adding that his office has an ongoing and active investigation “into the situation in the State of Palestine”.

Agnes Callamard, the secretary general at Amnesty International, also took to X to say that there is nowhere safe for Palestinians to go following the air strikes in Rafah.

“The Israeli incursion will have devastating consequences. Mass killings, forced transfers, more war crimes. The carnage must stop,” Callamard stated.

Khan has been a vocal critic of Israel’s military assault in Gaza since the war on Gaza started on 7 October after the Hamas-led attacks on southern Israel. In late October, Israel announced it would not allow Khan to enter the country, according to reports in the Israeli press.

Khan, speaking from the Rafah crossing at the time, expressed his desire to enter Gaza and Israel to investigate potential crimes.

Israel is not a signatory to the Rome Statute, which established the ICC, and is not a member of the Hague-based court.

However, the ICC can investigate nationals of non-member states in some circumstances, including when alleged crimes are committed in the territories of member states.

The Palestinian Authority is a member of the court. However, Israel refuses to allow members of the ICC to enter the occupied Palestinian territories in the West Bank and Gaza.

In December, Khan called on Israel to respect the international rules of war and said he was accelerating his investigation into violence by Israeli settlers against Palestinians in the occupied West Bank, issuing a statement similar to the one made on Monday.

“I was crystal clear, that this is the time to comply with the law. If Israel doesn’t comply now, they shouldn’t complain later.”

In the early hours of Monday, Israel carried out air strikes on Rafah, resulting in the deaths of numerous Palestinians who were taking refuge in homes and tents.

The attacks targeted 14 homes and three mosques in Rafah, Palestinian officials said. The Palestinian health ministry confirmed dozens of people were killed.

This action has heightened concerns about a looming ground assault on the region, which is heavily populated with displaced individuals who had fled there during the war, in addition to the people who normally live there.

The war on Gaza, which came in response to the 7 October Hamas-led attacks on southern Israel that killed 1,139 people and saw over 250 taken as captives back to Gaza, has resulted in Israel’s military killing more than 28,000 Palestinians – the majority being women and children – while at least 68,000 have been wounded.

Khan, the chief prosecutor, had previously led a UN probe into crimes by the Islamic State militant group in Iraq. He was elected by secret ballot in 2021 after ICC member states failed to come to a consensus on a replacement for his predecessor, Fatou Bensouda.

Since 2021, the ICC has been conducting an investigation into potential war crimes and crimes against humanity in the occupied Palestinian territories.