The ICC jurisdiction in the Third Gulf War
The ICC jurisdiction in the Third Gulf War
Alberto Fierro Aldudo holds an LL.M. from Maastricht University, where he specialised international law and human rights. LinkedIn · X
Introduction
On the early morning of the 28 February 2026, planes, missiles, and rockets from the United States and Israel started to strike several locations inside Iran. In the weeks that followed, Iran responded with ballistic missiles and drone strikes against Israel, Kuwait, Bahrain, Qatar, United Arab Emirates, Oman, Saudi Arabia, Iraq, Jordan, Cyprus, Turkey, and Azerbaijan. At the same time, Israel also initiated a military operation in Lebanon. During this time, the question of why the International Criminal Court (ICC) has not taken action to investigate alleged international crimes committed during the armed conflict has been constantly present in many forums, including opinion articles in media outlets such as the Wall Street Journal. Despite the answer to this question might seem clear for anyone familiarized with the jurisdiction system of the ICC, it is an excellent opportunity to review the principles of the jurisdiction of the Court, with special attention to some details often overlooked.
The jurisdictional system if the ICC
The Rome Statute (RS), founding treaty of the ICC, substantially limits the jurisdiction of the Court. The Office of the Prosecutor (OTP) can only investigate the crime of genocide, crimes against humanity, and war crimes committed in the territory of a state party to the RS or that has accepted the jurisdiction of the Court (including on board vessels and aircrafts of that state), crimes committed by a national of a member state regardless the location of the crime, or situations referred by the Security Council acting under Chapter VII of the Charter of the United Nations.
Art. 12(2)(a) RS states that the Court may exercise its jurisdiction if the state on the territory of which the conduct in question occurred has accepted the jurisdiction of the ICC. This wording has been used to extend the jurisdiction of the Court over situations in which the main conduct of the crime is committed in the territory of a state not under ICC jurisdiction but where at least one element of the crime has been committed in the territory of a state party, for example, the deportation of population from Myanmar to Bangladesh or from Belarus to Lithuania.
Current situation
Despite Iran, Israel, and the United States signed the Rome Statute on 31 December 2000, they never ratified it and therefore did not become members of the ICC. Furthermore, Israel and the US informed on 6 May 2002 that they had no intention to ratify the RS. For that reason, the ICC does not have jurisdiction over crimes committed in Iran by US and Israeli nationals or in Israel by Iranian nationals. However, the ramifications of this armed conflict have touched many states in the region, and some acts might fall into the jurisdiction of the Court.
Kuwait, Bahrain, Qatar, United Arab Emirates, Oman, Saudi Arabia, Iraq, Turkey, Lebanon, and Azerbaijan have not ratified the Rome Statute and therefore they fall outside of the jurisdiction of the Court. But Cyprus and Jordan are members of the ICC since 2002, and on 11 March 2010 the United Kingdom informed that they wanted to extend their ratification of the Rome Statute to certain territories under British sovereignty, including the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus. For that reason, if crime under the jurisdiction of the Court is committed in the territory of Jordan or Cyprus, including Akrotiri and Dhekelia, as a result of an Iranian strike, the ICC would have jurisdiction.
Furthermore, since the beginning of the war Iran has attacked around 30 tankers and cargo ships around the Strait of Hormuz, some of them with flags of ICC countries such as Japan, Marshal Islands, Gibraltar (UK), Liberia, Honduras, Malta, and Panama. According to art. 12(2)(a) RS the Court has also jurisdiction for the crimes committed on board of these vessels.
Moreover, the Court can also have jurisdiction in the situation that at least one element of a crime is committed in the territory of a state party even if the core conduct is committed somewhere else. For years many voices have argued that the ICC could initiate an investigation into the situation in Syria (not a state party) for the deportation of civilians to Jordan (a state party). Up to this moment the current situation does not seem to have caused similar effects, but it is not out of the question that this could happen in the future.
Additionally, the ICC could grasp jurisdiction in this situation through two different means. First, the UN Security Council could refer the situation to the Prosecutor, as it did in 2005 with the Situation in Darfur and in 2011 with the Situation in Libya. However, it is hard to imagine how a draft resolution referring the situation could avoid the veto of the United States. Second, one of the states involved in the armed conflict could accept the jurisdiction of the Court under art. 12(3) RS, as Côte d'Ivoire, Palestine, Ukraine, and Armenia have done in the past. The more likely candidate would be Lebanon, who already in 2024 decided to accept the jurisdiction of the ICC but changed its opinion a month later.
Conclusion
The jurisdiction of the International Criminal Court in this conflict is presumably limited. According to the provisions of the Rome Statute the Court could have jurisdiction under the following circumstances:
- The ICC already has jurisdiction to investigate the Iranian attacks in Jordan, Cyprus, and certain vessels under the flags of ICC member states.
- The ICC could have jurisdiction if at least one element of a crime committed in the territory of a non-party affects the territory of a state party, for example Jordan.
- The ICC could have jurisdiction if a state submit a declaration accepting the jurisdiction of the Court under art. 12(3) RS.
- The ICC could have jurisdiction if the UN Security Council refers the situation to the Prosecutor.
For that reason, even when in the current moment the jurisdiction of the ICC in the Third Gulf War is very limited, this can substantially change in the future depending on the willingness of the states involved of accepting the jurisdiction of the Court.