Since 7 October 2023, the Gaza Strip has been involved in an intense armed conflict between Israel and Hamas, sparking numerous legal debates. Two international courts, the International Court of Justice and the International Criminal Court, have both intervened, addressing various aspects of the conflict.
In early 2024, the ICJ issued a provisional measure following South Africa's accusation that Israel was committing genocide in Gaza. The International Court of Justice (ICJ) ordered Israel to take all necessary steps to prevent genocide and to improve the humanitarian situation in the region. Initially, the International Criminal Court (ICC) responded to the conflict only through statements from the Office of the Prosecutor (OTP). However, this changed on 20 May 2024, when Prosecutor Karim A. A. Khan applied for arrest warrants before the Pre-Trial Chamber.
The OTP has found reasonable grounds to believe that Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (known as Deif), and Ismail Haniyeh, all prominent leaders of Hamas, are criminally responsible for various war crimes and crimes against humanity. These charges include extermination, murder, taking hostages, rape, torture, and other inhumane acts committed in Israel and Gaza.
Simultaneously, the Prosecutor applied for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. They were accused of war crimes and crimes against humanity in Gaza, such as starvation and targeted attacks on civilians, linked to the imposition of a siege and other acts of violence against the Palestinian population. This simultaneous application for arrest warrants against Israeli and Hamas officials has sparked significant controversy and initiated strong reactions from Israel's leaders and its allies.
Jurisdiction of the ICC
The decision to seek arrest warrants was supported by a panel of experts who assessed whether the warrants met the standards of Article 58 of the Rome Statute. In its report, the panel of experts (the Panel) unanimously concluded that there were reasonable grounds to believe the individuals named in the warrants had committed war crimes and crimes against humanity within the Court's jurisdiction.
Even the report itself does not remain without a response. Some notice that the Panel concludes there are two distinct conflicts: one between Israel and Hamas (non-international) and another between Palestine and Israel (international). However, the Panel does not further clarify these distinctions or how to categorize Hamas. It also fails to specify which allegations apply to which type of conflict. The characterization of the armed conflict is questionable, and it's unclear which facts mentioned in the report come from the OTP's instructions, testimonial evidence, documentary or video evidence, or hearsay.
Since Israel is not a state party to the Rome Statute, deciding whether ICC had the necessary jurisdiction was essential. In 2015, the Government of the State of Palestine accepted the ICC's jurisdiction over alleged crimes and, a few months later, became a State Party to the Rome Statute. Thus, Palestine's status as a member state allows the ICC to investigate crimes committed not only by its nationals but also crimes that were committed on its territory. This jurisdictional claim is supported by the Panel as well.
The OTP has already initiated an investigation into the situation in Palestine in 2021, covering crimes alleged to have been committed there since 13 June 2014. The scope of the investigation has now expanded to include events after 7 October 2023, as confirmed by the Prosecutor in his statement on 17 November 2023.
International Responses
Some politicians, including United States President Biden, condemned the ICC's decision, criticizing it for equating Israel and Hamas. The US House of Representatives even passed a bill to sanction the ICC because of the arrest warrants against Israeli officials. The legislation aims to block ICC officials involved in the arrest warrant application from entering the US and to revoke their visas. Despite its passage in the House, the bill still needs the Senate's approval to become law.
Contrary to this, 93 States Parties to the Rome Statute have issued a joint statement affirming strong support for the ICC as an independent and impartial judicial institution, free from intimidation. The statement emphasizes the ICC's critical role in global peace and security, urging all states to cooperate fully to ensure justice for victims and uphold international humanitarian law. It underscores the commitment to protect the ICC's integrity from political interference and to stand united against impunity.
The Role of the Principle of Complementarity
Some Israeli officials also argue that the OTP has violated the principle of complementarity. This principle means that the ICC can step in to prosecute individuals for international crimes only when national legal systems are unable or unwilling to carry out proceedings themselves genuinely. This principle emphasizes the primary role of national legal systems in prosecuting such crimes, with the ICC serving as a secondary jurisdiction.
Two articles of the Rome Statute are essential for Israel if it wants to challenge the ICC’s investigation. One of them is Article 18, which deals with preliminary rulings on admissibility. This article mandates that the Prosecutor notify relevant states when initiating an investigation, giving them one month to inform the ICC if they are investigating related crimes. However, this is no longer relevant in Palestine, as Israel's one-month period to request a deferral has expired - the period began to run with the opening of the investigation in 2021.
The second article is Article 19, which addresses specific challenges to the jurisdiction of the ICC or the admissibility of a particular case. Article 19 allows a state or suspect to challenge the admissibility of a case once. If a state challenges the admissibility, the OTP must suspend its investigation until the Pre-Trial Chamber rules on the challenge. However, if a suspect challenges admissibility, the OTP can continue its investigation unless the Pre-Trial Chamber rules in favor of the suspect.
The key question is whether Israel is actively investigating the two suspects named in the ICC warrant requests and if these investigations cover the same conduct as the OTP's investigation. If they do, Israel can challenge the admissibility, requiring the OTP to pause its investigation until the Pre-Trial Chamber rules on the challenge. This process does not dispute the legitimacy of Israel's legal system, as many think, but focuses specifically on the cases and conduct under investigation.
Future Outcomes Remain Unclear
The Pre-trial Chamber must issue a warrant if there are reasonable grounds to believe someone has committed a crime within the ICC jurisdiction and their arrest is necessary. There is, however, no time limit for such a decision. If arrest warrants are issued, the state parties to the Rome Statute must arrest and transfer the suspects to the ICC if they enter their territories, as suspects must be apprehended to be tried before the ICC.
But as the Pre-trial Chamber has yet to issue a warrant, it remains unclear whether or when there will be a decision on the merits of the case, especially in a matter so sensitive in both legal and political fields. Trials for serious international crimes, in general, typically take years.
The OTP emphasized that the ICC's investigation highlights the need for adherence to international humanitarian law. The legal and political landscape underscores the complexity of pursuing justice in the context of the Israel-Hamas conflict. The international community's response and the ICC's determinations will significantly impact the pursuit of accountability and the broader implications for international humanitarian law.
Sources
Hansen, T. O. (May 2024). State Objections to the ICC Prosecutor’s Request for Arrest Warrants in the Palestine Investigation. EJIL:Talk! Available from https://www.ejiltalk.org/state-objections-to-the-icc-prosecutors-request-for-arrest-warrants-in-the-palestine-investigation/
Heller, K. J. (May 2024). An Overview of the Principle of Complementarity. Opinio Juris. Available from https://opiniojuris.org/2024/05/24/an-overview-of-the-principle-of-complementarity/
International Criminal Court (January 2015). The State of Palestine accedes to the Rome Statute [press release]. Available from https://www.icc-cpi.int/news/state-palestine-accedes-rome-statute
Kern, J., Herzberg, A. (June 2024). The OTP’s expert panel in the Situation in the State of Palestine: Additional safeguard or hostage to fortune? EJIL:Talk! Available from https://www.ejiltalk.org/the-otps-expert-panel-in-the-situation-in-the-state-of-palestine-additional-safeguard-or-hostage-to-fortune/
Miller, P. (June 2024). US House of Representatives passes bill that would sanction ICC over possible Netanyahu arrest warrant application. JURISTnews. Available from https://www.jurist.org/news/2024/06/us-house-of-representatives-passes-bill-outlining-sanctions-against-icc-over-netanyahu-arrest-warrant-application/
Office of the Prosecutor (March 2021). Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine [press release]. Available from https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-respecting-investigation-situation-palestine
Office of the Prosecutor (May 2024). Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine [press release]. Available from https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state
Office of the Prosecutor (November 2023). Statement of the Prosecutor of the International Criminal Court, Karim A.A. Khan KC, on the Situation in the State of Palestine: receipt of a referral from five States Parties [press release]. Available from https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine
Panel of Experts in International Law (May 2024). Report of the Panel of the International Law (report). Available from https://www.icc-cpi.int/sites/default/files/2024-05/240520-panel-report-eng.pdf
Permanent Mission of the Czech Republic to the UN in New York (June 2024). Joint Statement in support of the International Criminal Court (ICC) [press release]. Available from https://mzv.gov.cz/un.newyork/en/news_events/joint_statement_in_support_of_the.html
Pěničková, A. (February 2024). The International Court of Justice: Israel must take action to prevent the risk of genocide in Gaza. Czech Centre for Human Rights and Democracy. Available from https://www.humanrightscentre.org/blog/international-court-justice-israel-must-take-action-prevent-risk-genocide-gaza
Quigley, J. B. (May 2024). Karim Khan’s Dubious Characterization of the Gaza Hostilities. EJIL:Talk! Available from https://www.ejiltalk.org/karim-khans-dubious-characterization-of-the-gaza-hostilities/
Sagoo, R., Dias T. (May 2024). The ICC Prosecutor’s applications for arrest warrants explained. Chatham House. Available from https://www.chathamhouse.org/2024/05/icc-prosecutors-applications-arrest-warrants-explained
Photograph
ICC Prosecutor Karim A. A. Khan, source: ICC-CPI.
