The ICC ruled in 2021 that its criminal jurisdiction extended to the Palestinian territories of Gaza, the West Bank and East Jerusalem, and opened a formal investigation into the endemic violence in the region since 2014.

The Hague court wants to probe war crimes in Israel and Gaza. Where does Europe stand?

This gives Khan a mandate to probe war crimes committed both in Palestine and by Palestinians - including Hamas’ deadly incursion into Israel on October 7th - and Israel’s military response in Gaza. He has vowed to make full use of the force of the law to bring justice to both Israeli and Palestinian victims.

But efforts to delegitimise Khan’s mandate threaten to stymie the investigation and perpetuate impunity.

Israel is not a state party to the court and Prime Minister Benjamin Netanyahu has continuously attempted to undermine its work, denouncing the Palestine investigation as "pure anti-Semitism." The US also rejects the ICC’s legitimacy.

The European Union, a staunch supporter of the court on paper, could also face opposition to an ICC-led probe from within its own ranks due to the bloc's fragmented position on the Israelo-Palestinian conflict.

EU countries torn on Palestine's statehood

Although all EU countries are state parties of the ICC, five have rebuked the court’s jurisdiction over Palestine - Austria, the Czech Republic, Germany, Hungary and Lithuania - citing the absence of Palestinian statehood and fears over the politicisation of the court.

According to Dr. Talita Dias, a senior research fellow at Chatham House, a thinktank, objections among EU states could "make it possible for the court’s claim of jurisdiction over Palestine to be challenged once again, especially before the appeals chamber."

States’ vetoes could also hamper the practicality of investigations and leave the court, which is funded by member countries’ contributions, without the necessary resources.

Israel’s objection to the probe could even mean evidence could be "tainted," according to Dias.

"The ICC depends on the cooperation of all states because it has no enforcement or police powers of its own. It depends on state cooperation to collect evidence and get custody of accused persons," she explained.

"Practically, operational support from big players is important for successful investigations and prosecutions, especially because of the ICC’s budgetary and enforcement constraints," she added.

But Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations thinktank, says that conflicting views among EU countries would only "affect questions of rhetorical backing" and that each would be "obliged to cooperate with the investigation in line with the provisions of the Rome Statute."

"The key question is whether he (Khan) will be able to get access to Israel and Gaza," he added. "European countries could make a difference by speaking out in favour of this."

Belgium is providing an extra €5 million in funding to the ICC’s investigation into the Israel-Hamas conflict in a bid to boost justice-seeking efforts. Opposition parties in Ireland have also attempted, unsuccessfully, to pass a motion urging the Irish government to refer Israel to the ICC for its actions.

Brussels stands by the Hague court

Brussels has not voiced objections to the court’s jurisdiction over Palestine, despite its member states’ divergent positions.

In late November, a spokesperson for the EU’s High Representative for Foreign Affairs said: "Our support for the ICC has not changed."

"It was already in 2021 when the ICC launched an investigation in Palestine, and the prosecutor of the ICC has a duty to investigate all alleged crimes in a specific situation, no matter where they happen," the spokesperson added.

Nonetheless, the EU's relationship with the court has at times been tested. Prosecutor Khan has blasted European Commission President Ursula von der Leyen’s proposal to create a UN-backed special tribunal to prosecute war crimes in Ukraine, as a blow to his mandate and a fragmentation of the international criminal system. The move came amid concerns the ICC could do little to bring Russian perpetrators to justice, despite issuing an international arrest warrant for President Vladimir Putin, since neither Ukraine nor the Russian Federation are state parties.

Dworkin believes the measures taken by Europe to help ensure justice for Ukrainian victims of war are in stark contrast to their response to the Gaza conflict.

“It’s certainly true that European leaders and officials have spoken much less about the role of the ICC in the Gaza war than in the case of Ukraine – where many European countries actually referred the situation to the prosecutor,” he said.

Western powers sceptical

Another barrier to the investigation is resistance from the EU’s allies, the United Kingdom and the United States.

The US is not a state party to the ICC, and its rejection of the court’s jurisdiction in non-state parties is long-standing.

Earlier this year, the Biden administration agreed to assist the court’s prosecutor in its investigations in Ukraine, marking a major turning point in Washington’s distanced stance and highlighting its willingness to support in certain contexts.

But its position on the Palestine probe has not changed.

"Given the US’ geopolitical influence and its particular role as a mediator in the conflict in Gaza, its lack of support for the ICC may hinder the court’s ability to garner resources and the cooperation of other States," Dias explained.

The UK, despite being a member of the court, has opposed the ICC’s claim of jurisdiction over Palestine since 2021, when the then-prime minister Boris Johnson said that "unilateral judicial actions […] exacerbate tensions and undercut efforts to advance a negotiated two-state solution," marking a souring of UK-Palestine relations.

Both Western powers’ rebuke is in stark contrast to some countries in the Global South, such as Bangladesh, Bolivia, the Comoros, Djibouti, and South Africa, who referred the situation of Palestine to the court’s prosecutor on November 17.

A turning point, although unlikely, could be Israel’s willingness for the atrocities committed by Hamas on October 7th, when around 1200 innocent Israelis were killed and more than 200 taken hostage, to be probed by the ICC. Khan said last week he would not be deterred from conducting an investigation, even if Israel maintains its rebuke of the court.

When asked about a potential ICC-led probe into Hamas’ attack, the Israeli ambassador to the EU, Haim Regev, told Euronews in a press conference in Brussels that "war crimes were committed by Hamas, no question."

"Now is not the time to discuss it, while we are at war, but we will come back to it when the time is right," Regev added.

Russia calls for international monitoring mission in Gaza.

Russian Foreign Minister Sergei Lavrov attends a meeting of President of the United Arab Emirates Sheikh Mohamed bin Zayed Al Nahyan and Russian President Vladimir Putin in Abu Dhabi.

Russia on Sunday called for an international monitoring mission to go to Gaza to assess the humanitarian situation, and said it was unacceptable for Israel to use Hamas' Oct. 7 attack as justification for punishing the Palestinian people.

Israel invaded Gaza in retaliation for Hamas attack that Israel says killed 1,200 people. Israel's assault on Gaza has killed at least 17,000 people, Gaza health authorities say.

The United States on Friday vetoed a proposed U.N. Security Council demand for an immediate humanitarian ceasefire in the war between Israel and Palestinian militant group Hamas.

"We strongly condemned the terrorist attack against Israel on Oct. 7," Russian Foreign Minister Sergei Lavrov told Al Jazeera in an interview aired on Sunday at the Doha Forum conference.

"At the same time, we do not believe it is acceptable to use this event for the collective punishment of the millions of Palestinian people with indiscriminate shelling."

Lavrov said that for there to be "humanitarian pauses" in Gaza "some kind of monitoring on the ground" was needed.

"We addressed the [UN] Secretary General [Antonio Guterres] suggesting that he use his authority to consider some kind of monitoring - but so far to no avail," Lavrov said.

President Vladimir Putin has repeatedly accused the United States and the West of ignoring the need for an independent Palestinian state within 1967 borders. Putin on Sunday spoke to Israeli Prime Minister Benjamin Netanyahu about Gaza.

"This happened not in a vacuum," Lavrov said, pointing to decades of blockade and unfulfilled promises about a Palestinian state.

The UN's Guterres has previously said that the Hamas attack did not happen in a vacuum. Israel said Guterres had justified the Hamas attacks with such words. Guterres rejected the Israeli accusations.

UKRAINE

Asked in the Al Jazeera interview if Russia was being hypocritical with its criticism about that fate of the Palestinians while Russia fights a war in Ukraine, Lavrov said neither he nor Russia were hypocritical.

Lavrov said that the West was trying to exhaust Russia in Ukraine by supplying weapons and that if peace talks were to take place then Ukrainian President Volodymyr Zelenskiy would have to annul his own presidential decree.

"It is up to the Ukrainians to recognise how deep they are in the hole where the Americans put them," Lavrov said when asked if the war was at a stalemate.

When asked by Al Jazeera what the chances were of diplomacy to bring about a ceasefire or peace in Ukraine, he said: "You'll have to call Mr Zelenskiy because a year and half ago he signed a decree prohibiting any negotiations with Putin."

Lavrov said that a peace deal between Ukraine and Russia was almost reached in Istanbul in March and April 2022 based on the idea of Ukrainian neutrality.

"This deal was aborted - it was cancelled because the Americans and the Brits decided that if Putin is ready to sign it then lets exhaust him more. That's what they are doing now. Stalemate or no stalemate - that is the fact," Lavrov said.

Asked in the interview about the August plane crash which killed Wagner mercenary chief Yevgeny Prigozhin, Lavrov said investigators had probed the crash.

"As regards the soldiers from Wagner group... quite a number of them went to Belarus and started to serve there," Lavrov said "Others joined the regular structures of the Russian army - and they continue to serve."