Al Jazeera files complaint against IDF at ICC over Abu Akleh killing

Previous investigations into the killing of Shireen Abu Akleh concluded that she was most likely killed by an accidental bullet from an IDF soldier.

 A Palestinian girl protests in support of slain Palestinian-American journalist Shireen Abu Akleh, as US President Joe Biden visits Augusta Victoria Hospital, in Jerusalem (photo credit: REUTERS/AMMAR AWAD)
A Palestinian girl protests in support of slain Palestinian-American journalist Shireen Abu Akleh, as US President Joe Biden visits Augusta Victoria Hospital, in Jerusalem
(photo credit: REUTERS/AMMAR AWAD)

Al Jazeera filed a complaint with the International Criminal Court against members of the IDF over the killing of Palestinian journalist Shireen Abu Akleh, who was shot and killed during an IDF operation in the West Bank in May, the network announced on Tuesday.

The complaint comes in the middle of the ICC’s high-profile annual meeting of its Assembly of State Parties that govern it and formulate its budget.

In March 2021, then-ICC prosecutor Fatou Bensouda opened a full criminal investigation against Israelis and Palestinians relating to the 2014 Gaza War, the 2018 Gaza border confrontations and against the Israeli settlement enterprise.

This latest complaint will now become a part of that broader file since only the ICC Prosecutor, and not any third party, can decide whether to proceed with criminal charges.

However, current ICC Prosecutor Karim Khan has not taken any public action on the probe since he took office in June 2021.

 A portrait of Al Jazeera journalist Shireen Abu Akleh, who was killed during an Israeli raid, is displayed during a special mass in her memory in the Church of the Nativity in Bethlehem in the West Bank, May 16, 2022.  (credit: REUTERS/MUSSA QAWASMA) A portrait of Al Jazeera journalist Shireen Abu Akleh, who was killed during an Israeli raid, is displayed during a special mass in her memory in the Church of the Nativity in Bethlehem in the West Bank, May 16, 2022. (credit: REUTERS/MUSSA QAWASMA)

Even multiple public filings by Khan to the Assembly of State Parties contained scant references to the Israeli-Palestinian conflict.

In a statement, Al Jazeera said that it came to the decision to file the complaint after forming an "international legal coalition that consists of [Al Jazeera]'s legal team along with international legal experts."

A video released by Al Jazeera on Tuesday included interviews with several of Abu Akleh's journalist colleagues who were with her when she was killed.

It depicts her arrival at the scene, some discussions she had with her colleagues when the scene was calm, shows how the scene transformed without warning into a kill zone despite there not being Palestinian gunmen in the immediate vicinity and Abu Akleh's last words, "Ali has been shot" after one of her colleagues was shot, though not mortally wounded.

The video footage also has an interview with her niece after the incident.

While the footage does not portray the full circumstances of the incident, including shooting at the IDF which the IDF has said it responded to in a chaotic and uncertain atmosphere, it certainly supports efforts to tarnish the IDF's name in the incident. 

The complaint is primarily about the killing of Abu Akleh, but will also reference the bombing of the Al Jazeera office in Gaza during Operation Guardian of the Walls in May of 2021.

No one was killed in that attack and Israel presented intelligence that a special Hamas unit was illegally using the civilian building as a form of a shield from being fired on, but the IDF was condemned globally, including by many of its usual Western allies.

Previous investigations into the incident

A forensic investigation of the bullet that killed Abu Akleh was inconclusive, but several investigations conducted by multiple media organizations and independently by the IDF concluded that it was most likely a misfire by one of the IDF soldiers during the raid.

The Palestinian Authority was asked to conduct a joint investigation with Israel, but refused and has insisted, without specific evidence, that the killing was an intentional targeting of the journalist.

Last month, the FBI opened an investigation into the incident, a move that angered Israeli officials who argued that this set a highly problematic precedent for second-guessing a democratic country’s independent legal system.

There were also concerns that the FBI probe might bolster the general ICC probe against Israelis, although that remains to be seen.

"Al Jazeera vows to follow every path to achieve justice for Shireen, and ensure those responsible for her killing are brought to justice and held accountable in all international justice and legal platforms and courts."

Prime Minister Yair Lapid said that "no one will investigate IDF soldiers and no one will lecture us about morals in wartime, especially not Al Jazeera."

Defense Minister Benny Gantz said that Abu Akleh's death was "a clear wartime event that was investigated in the deepest and most thorough way.

"I suggest that... Al Jazeera first check what is happening to journalists in Iran and other countries in the area in which Al Jazeera is active," Gantz added, during a conference on education in the Knesset. "There is no army that acts as morally in wartime as the IDF and I want to emphasize my and the entire system's full backing for the commanders and soldiers who defend the citizens of Israel."

"There is no army that acts as morally in wartime as the IDF and I want to emphasize my and the entire system's full backing for the commanders and soldiers who defend the citizens of Israel."

Defense Minister Benny Gantz

The Foreign Ministry had no comment on the petition.

Israel does not recognize the jurisdiction of the ICC because it argues there is no "State of Palestine" to refer the file to the iCC in the first place, something the ICC Pre Trial Tribunal has resolved in favor of the Palestinians.

Still, the ICC cannot proceed against anyone if the country hosting the suspects in question has carried out its own independent investigations.

Though critics argue Israel is too lenient with its own soldiers, a number of soldiers have been sentenced to prison time over the years for killing Palestinians.

The tense situation also comes against the backdrop of the controversial Otzma Yehudit Mk Itamar Ben Gvir being on the verge of taking control of the Israeli border police, and threatening to make their open fires rules more aggressive.

Lahav Harkov, Jerusalem Post Staff and Reuters contributed to this story.