Image source: Flickr
Author: Nina Sherwood
Significant announcements in relation to the Israel-Gaza War have been made from two of the highest courts in international law last week. The International Criminal Court’s (ICC) Chief Prosecutor, Mr Karim Khan KC, has applied for the arrest warrants of Hamas leadership - Yahya Sinwar, Ismail Haniyeh and Mohammed Deif - as well as the Israeli Prime Minister Benjamin Netanyahu and the Israeli Defence Minister Yoav Gallant. Additionally, the International Court of Justice (ICJ), as part of proceedings brought against Israel by South Africa, has ordered Israel to halt its offensive in Rafah, maintain open the Rafah crossing to allow aid and humanitarian assistance and allow fact-finding missions led by the UN into Gaza. But what exactly does this mean and is it likely to change anything in Gaza right now?
What is the difference between the ICC and the ICJ?
The International Criminal Court deals with individuals only, and its jurisdiction extends specifically to crimes against humanity, genocide, war crimes and crimes of aggression. Mr Khan KC has submitted he has reasonable ground to believe that the chosen leaders of Hamas have committed war crimes and crimes against humanity, and in the same statement confirmed he also had reasonable grounds to believe that Mr Netanyahu and Gallant were also responsible for war crimes and crimes against humanity committed in the Gaza strip.
In contrast, the International Court of Justice deals with disputes between states, thus having no jurisdiction over Hamas. For example, in 2022 the court issued an order for Russia to immediately cease its military operation after proceedings were brought by Ukraine. The ICJ has jurisdiction over matters referred to it by states in the United Nations, and in special circumstances has jurisdiction over states not in the United Nations. South Africa has brought proceedings against Israel, claiming it has failed to meet its obligations under the Genocide Convention.
ICC arrest warrant procedure
Before the application for arrest warrants to be issued, Mr Khan KC will have been involved in intensive preliminary examinations, investigating whether the case will fall within the court’s jurisdiction, whether opening the case would serve the interests of the victims and whether there is a reasonable belief that the prosecutions would be successful. Additionally, under the principle of complementarity, the court does not intervene if there is a genuine belief that there are independent national judicial systems that would effectively deliver justice.
An investigation into the situation in occupied Palestine has been open since 2015, when Palestine was allowed to join the Court under the Rome Statute. The Prosecutor now has applied to the Pre-Trial Chamber for arrest warrants, his application pending approval from the Chamber. Historically, this process is a matter of months, with the warrant for Omar al-Bashir taking 9 months to be approved and Putin’s warrant taking a month to be approved. This is therefore not a quick process, and the application could be denied (though this has only ever happened once, in the case of Mudacumura in Congo, which was successful on reapplication). However, the allegations that this procedure has been rushed must be resisted; the investigations have been open since 2021 when former Prosecutor Fatou Bensouda opened the official investigation after it was confirmed that the case was within ICC jurisdiction.
Perhaps the most contentious part of the application is the renewed discussion about the complementarity principle. Article 17 of the Preamble to the Rome Statute established the principle of complementarity in the ICC, where the court will not intervene unless the national judiciary is judged unable or unwilling to effectively prosecute the offenders, introduced as a measure to ensure that nation states did not see the court as a threat to their sovereignty. There is also a ‘same-person, same-conduct’ test which analyses whether a nation state is prosecuting the specific individual for purposes that ‘mirror’ the ICC’s. Under Article 18 the one-month period for them to ask for deferral based on complementarity is no longer available, given Israel was notified almost three years ago.
Senior US Republican Senators have threatened to sanction the Prosecutor for the application and the US Secretary of State has alleged that the Prosecutor has not complied with the principle of complementarity, as Israel has an independent national judiciary. Professor Kevin Jon Heller has refuted the above allegations by US officials, “Whether Israel has an independent judiciary is relevant only to the state’s willingness to genuinely investigate the two suspects identified in the arrest-warrant applications, and willingness is only an issue if Israel is actively investigating the suspects for substantially the same conduct.” Therefore, the complementarity principle has been sufficiently respected, and the ICC arrest warrants (if granted) would be valid.
The ICJ order
South Africa has lodged a case in the ICJ alleging that Israel is committing a genocide against the people of Palestine. Given the ICJ does not have jurisdiction over individuals, it will investigate the action of the state government, military and security services, and its remedies injunctions, restitution and damages.
There was some dissent from judges in the court, specifically on what the judgement meant for Israel. The main objection was that the order did not mean Israel had to halt their offensive altogether, just that they had to halt any part of the offensive that could inflict upon Palestinians “the conditions of life that could bring about its physical destruction in whole or in part”. However, this is an untenable interpretation of the order that was released. In it, the court did not distinguish between specific actions in the offensive, and indeed rejected Israel’s contention that the measures it was taking already to ensure no disproportionate effects to civilians would be sufficient. The following reasoning is from the order: (my emphasis added)
“the Court finds that the current situation arising from Israel’s military offensive in Rafah entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused.”
It should be clear from this passage that the court was not inviting Israel to choose which parts of its operation were likely to deem a risk to Palestinians’ rights under the Genocide Convention. Rather, it was stating that the operation already entails such a risk and therefore should be halted in its entirety.
How will Israel react?
Firstly, in relation to Israel’s offensive itself, it is clear that, in the short term, the order from the ICJ has not had an effect. Already, more than 36,096 Palestinians have been killed and 81,136 have been injured in Israel’s military offensive on Gaza since 7 October. However, attacks have not ceased since the ICJ ruling, Israel has continued to bomb Rafah and at least 45 Palestinians have been killed in a humanitarian area near Rafah.
Both the USA and Israel have been exerting a significant amount of pressure on the court to drop the investigation. In a recent expose, the Guardian revealed how the Israeli security services exerted pressure on the former Prosecutor by threatening herself and her family. The Trump administration had placed Fatou Bensouda on a list of ‘specially designated nationals’, which is a sanction programme for U.S.-designated terrorists, officials and beneficiaries of certain authoritarian regimes, and international criminals. Mike Pompeo, then US Secretary of State, linked the sanctions package to the Palestine case. “It’s clear the ICC is only putting Israel in [its] crosshairs for nakedly political purposes.” Although Ms Bensouda was removed from the list under the Biden administration, with an official apology, placing the chief Prosecutor of the ICC is put on a sanction list for pursuing an investigation is clearly unacceptable and against the rule of law. Politicising prosecutions in this way undermines the court’s legitimacy and efficacy.
What happens next?
The ICC and the ICJ both rely on the support of the international community in order to give strength to their judgements and injunctions. When the ICC released an arrest warrant or Vladimir Putin, it was enforced (albeit not yet successfully) with a broad range of sanctions from all members of the international community. However, the international community has not stepped up in the same way to support the international legal institutions with relation to Israel (in fact, the US directed its sanctions to the members of the court). It is clear that for meaningful change to occur, pressure must be put on the Israeli government by the international community, and for this to occur, more pressure must be exerted on governments.