Creating a Special Tribunal for Aggression in Palestine (Post-2023 Gaza Conflict)

Dr Brian Brivati, Executive Director, Britain Palestine Project

Creating a Special Tribunal for Aggression in Palestine (Post-2023 Gaza Conflict)

This is a follow-up to the earlier post on the creation of the Special Tribunal for Ukraine here

A special tribunal for the crime of aggression requires a solid legal foundation under international law. Ideally, the U.N. Security Council could establish such a tribunal under Chapter VII of the U.N. Charter, as it did for Yugoslavia and Rwanda. However, political blockages in the Security Council will prevent action on Israel/Palestine. As a result, alternative legal pathways could be explored. There are two things required: a multilateral treaty among concerned states, including Palestine, to establish the tribunal and a regional body to implement it. This treaty-based regional approach mirrors the creation of the Special Tribunal for Ukraine, which is based on an agreement between Ukraine, the Council of Europe, and supporting states. In Palestine's case, the State of Palestine, with observer status at the U.N. and a party to the ICC, could delegate jurisdiction to an international tribunal through a similar agreement. Such a treaty could be open for other nations or organisations to co-sponsor or accede to, enhancing the tribunal’s legitimacy. The tribunal’s jurisdiction would need to be carefully defined. It would likely have authority over individuals (civilian or military leaders) who planned, prepared, initiated or executed the alleged aggression against Palestine – in other words, those “at the policy-making level” responsible for the decision to use unlawful force. The definition of aggression would follow international law: Article 8bis of the ICC Rome Statute (added via the Kampala Amendments) defines the crime of aggression in terms of a manifest violation of the U.N. Charter by use of force. U.N. GA Resolution 3314 (1974) can also guide the definition, as it enumerates acts that constitute aggression (e.g. invasion or occupation of territory, bombardment of ports or cities, blockade, etc.). Notably, Resolution 3314 explicitly affirms that no territorial acquisition resulting from aggression is lawful, a relevant principle given Israel’s long-term occupation of lands seized by force in 1967. The tribunal would have subject-matter jurisdiction over the crime of aggression in relation to Palestine (focusing on the 2023 Gaza war, while recognising the context of prior events and incursions into Palestinian territory and military occupation of Palestinian territory). Temporal jurisdiction could commence from the specific date of the alleged aggression (for example, the start of the Gaza military offensive in October 2023), but drafters might also consider whether the tribunal could examine earlier uses of force (e.g. frequent incursions into Gaza and the West Bank) under an expanded temporal mandate for context going back to 1st July 2002. In any case, the crime of aggression is a leadership crime, so the tribunal would prosecute top officials—not rank-and-file soldiers—for decisions to wage aggressive war.

A crucial legal requirement is that the tribunal be established as an international court (not a domestic Palestinian court), in order to pierce immunities that high-level officials might otherwise enjoy. Under international law precedents (Nuremberg, ICTY, etc.), heads of state and senior officials do not have immunity before international criminal tribunals for core crimes. By contrast, if the State of Palestine alone tried to prosecute Israeli leaders in its national courts, such cases would face claims of personal immunity for sitting officials. A special tribunal constituted by multiple states (or under U.N. or regional auspices) would bolster the argument that no immunities apply, consistent with the principle that official capacity is no defence to international crimes. This principle has been upheld since Nuremberg: initiating a war of aggression is “not only an international crime; it is the supreme international crime” for which perpetrators must be held to account regardless of rank. Therefore, the tribunal’s statute should explicitly state that official status is irrelevant to criminal responsibility – as is common in modern tribunal statutes.

In practical terms, the tribunal would need a statute outlining its composition and procedures, similar to other ad hoc tribunals. Typically, such a court would include international judges, a prosecutor, and a registry/administration. The Special Tribunal for Ukraine provides a template: its draft Statute has been agreed upon by Ukraine and partner states, ensuring that proceedings will apply international law and meet the highest procedural standards. For a Palestine aggression tribunal, judges could be appointed by participating states or international bodies (to guarantee independence), and the court could be located in a neutral venue (e.g. The Hague or another host city willing to cooperate). The tribunal’s jurisdictional basis would derive from Palestinian consent and the treaty among sponsoring states, as in the Ukraine model where the tribunal’s jurisdiction “derives from Ukraine” as the victim state. Importantly, because no Israeli consent would be forthcoming, the tribunal would operate in absentia unless suspects are captured or travel to a country that recognizes the tribunal’s warrants. The tribunal would issue indictments and international arrest warrants; enforcement would then depend on cooperation by states that accept its jurisdiction. This makes broad international buy-in critical - the more states (especially those likely to receive traveling officials) that join the tribunal agreement, the more enforceable its justice will be.

Although Security Council authorisation is inconceivable at present, the U.N. General Assembly could play a supporting role under its Uniting for Peace mechanism. Under the Uniting for Peace resolution (GA Res. 377 (V) of 1950), if the Security Council is paralysed by veto in the face of aggression or a breach of peace, the General Assembly can recommend collective measures by member states. In theory, the General Assembly could recommend the establishment of a crime of aggression tribunal or endorse a multilateral agreement creating it. This would not make the tribunal a U.N. organ, but it would confer political legitimacy and encourage U.N. members to cooperate. Some legal scholars contend that the General Assembly, with sufficient political will, has authority to help establish such a tribunal by recommending that willing states act collectively. Even a General Assembly blessing (through a resolution) for a special tribunal on aggression would strengthen its claim to international legitimacy. In the case of Ukraine, while the General Assembly stopped short of directly creating a tribunal, it did recognize Russia’s war as aggression and called for accountability. A similar GA resolution on Palestine could declare the Gaza war an act of aggression and encourage the formation of an impartial tribunal, laying a moral and political foundation.

The new tribunal must also navigate its relationship with the International Criminal Court. Palestine is a State Party to the ICC, and as noted, the ICC is already investigating other crimes (war crimes, crimes against humanity) in the situation and the ICJ is hearing the South African case on Genocide. However, as discussed in the previous post, because of jurisdictional gaps, the ICC cannot prosecute aggression by a non-State Party aggressor. A special tribunal would fill this gap, operating alongside the ICC’s ongoing cases. Coordination mechanisms would be needed to avoid duplication or conflict. In the preamble to the Ukraine tribunal’s founding agreement, it is noted that the special tribunal is intended “to avoid duplication of prosecutions at national level against the same individuals”. In the Palestine context, duplication with ICC efforts should be minimised by focusing the special tribunal solely on the crime of aggression (while the ICC continues to address war crimes and crimes against humanity by all parties). This complementary approach ensures that all international crimes are covered across the two justice mechanisms without overlap.

Finally, practical requirements for the tribunal include securing funding, staffing, and a host state. Dozens of states may need to contribute funds and second personnel (judges, prosecutors, investigators) to make the court operational. These institutional needs underscore why broad sponsorship is necessary.

Regional Bodies and Coalitions as Sponsors (Absent Security Council Action)

Given the certainty of a Security Council veto against any tribunal targeting Israeli officials, viable sponsorship must come from regional organisations or ad hoc coalitions of states. Several regional bodies could potentially take the lead in convening a special tribunal for Palestine’s situation:

Arab League: As a member of the Arab League, Palestine would benefit from the League’s consistent support for Palestinian rights. In 2016, the Arab League proposed a special international tribunal for Israeli crimes, setting a precedent for regional interest in such a mechanism. The Arab League could convene a summit or legal committee to draft a tribunal statute, which could be open to other states. The League could also provide funding and a neutral location for the tribunal. Although seen as lacking impartiality by Western states, the League could involve external partners or seek U.N. General Assembly endorsement to enhance legitimacy.

Organization of Islamic Cooperation (OIC): The OIC, a bloc of 57 Muslim-majority countries, has regularly condemned Israeli military actions and called for Palestinian protection. The OIC could create a legal committee to develop a framework for the tribunal, with support from influential non-Arab states like Turkey or Malaysia. An OIC-led tribunal could coordinate with the Arab League and African Union, and its credibility could be bolstered by involving neutral international jurists and seeking U.N. General Assembly recognition. ICJ allowed the OIC to join the case against Israel with respect to its obligations in the Occupied Palestinian Territory.

Ad Hoc Coalition of Like-Minded States: A coalition of interested states could form to establish the tribunal, as seen with the Ukraine aggression tribunal. This Core Group could include Arab, Muslim-majority, African, and Latin American countries that have voiced support for Gaza. Using platforms like the U.N. General Assembly, states could convene a summit or conference to draft the tribunal’s statute, with an Enlarged Agreement open to any supporting state. This approach maximizes global participation, crucial for the tribunal’s resources and enforcement.

The establishment of a Special Tribunal for the Crime of Aggression in Palestine, following the model set by Ukraine, offers a viable legal framework for addressing aggression, particularly in the context of the 2023 Gaza war and the ongoing occupation since 1967. Key lessons from the Ukraine tribunal include the need for the victim state's formal consent, the strategic use of regional platforms like the Arab League, broad international coalitions, and a court with the authority to prosecute foreign leaders. The success of the Ukraine tribunal highlights the potential of multilateral cooperation outside the U.N. Security Council to close accountability gaps. While political challenges are significant, the principle that leaders should not be immune from accountability for unlawful war is fundamental. The international community now faces the critical test of whether it can create a similar tribunal for Palestine, overcoming political roadblocks and sending a powerful message that aggression itself is punishable under international law.