Explaining the Consequential ICC Application for Indicting Israeli Leaders for War and Some Western Objections to It

The Prosecutor of the International Criminal Court, Karim Khan, said that he had submitted requests to the court to issue arrest warrants, stressing that the Israeli Prime Minister, Netanyahu, and the Defense Minister, Gallant, bear responsibility for crimes against humanity in Gaza.

He added that the evidence concluded that Israeli officials systematically deprived Palestinians of the basics of life, and that Netanyahu and Gallant were complicit in causing suffering, starvation of civilians in Gaza, and deliberate killing.

Immediately after the announcement, the Americans and Israelis, along with some Europeans, were quick to direct strong criticism at the International Criminal Court. Biden, along with the US State Department, described the decision as “an outrageous matter,” while the Israelis described the decision as a “historic disgrace.” Members of US Congress went on the record to threaten ICC officials, "you go over Israel and we will go after you," US lawmakers are reported to have said to ICC officials.

During their defense of “Israel,” US officials argued that the court should not draw parallels between Hamas and “democratically elected officials,” as they claimed, and they confirmed, through a number of their experts, that the court has no authority over “Israel,” since it is not a member of the Rome Statute. The basic principle is that “Palestine is not a state,” They said. They also claimed that the court must adhere to the principle of “complementarity,” pointing out that the Israeli judicial system is the one that must decide on any accusations, not the International Criminal Court.

Here is a reading of US objections in the context of the reality on the ground and the facts as stated in the legal documents:

A. Immunity for “democratically elected officials”

First, the idea that there are “elected” defendants does not mean that they enjoy criminal immunity before international courts. The International Criminal Court Statute affirmed the application of this responsibility to all persons without discrimination, by reason of official capacity, such as a head of state or government, a member of a government or parliament, an elected representative, or a government employee (Article 27).

The Rome Statute also contains an explicit and clear text on the principle of individual criminal responsibility of “natural persons”. It explicitly stipulates that any provision in this statute relating to individual criminal responsibility does not affect the responsibility of states under international law (that is, it separates the responsibility of Netanyahu and Gallant from the responsibility of “Israel as a state” before other courts, including the International Court of Justice).

B. The court has no jurisdiction to investigate Israeli crimes in Gaza

The Rome Statute identifies three situations under which a case may be referred to the Court:

 

1.  Referral to the Prosecutor of the Court by a state party to the Rome Statute of the International Criminal Court. In this case, at least one of two conditions must be met:

 

- The state, in whose territory the crime occurred, must be a party to the statute of the court, or has accepted the jurisdiction of the court (here it is Palestine).

 

- That the state, of which the person accused of the crime is a national, is a party to the statute of the court, or has accepted its jurisdiction.

 2.  Referral from the UN Security Council to the Prosecutor of the Court, in accordance with Chapter VII of the United Nations Charter.

 3.  The court prosecutor may initiate an investigation on his own initiative on the basis of information related to crimes within the court’s jurisdiction.

 In this case, it is required that the state in whose territory the crime occurred be a party to the statute of the court, or has accepted the jurisdiction of the court, and/or that the state of which the person accused of the crime is a national is a party to the statute of the court, or has accepted its jurisdiction.

 In confirmation of this, after the Israeli war on Gaza, the Attorney General received a referral from five countries - South Africa, Bangladesh, Bolivia, Comoros, and Djibouti - regarding the situation in the State of Palestine.

 “By receiving the referral, my office confirms that it is currently conducting an investigation into the situation in the State of Palestine,” Karim Khan said. He stressed that, in accordance with the Rome Statute, his office has jurisdiction over crimes committed in the territory of a State Party (Palestine), and in relation to citizens of States Parties.

 C. The claim that Palestine is not a state and has no right to litigate in court

After Palestine submitted its application to join the Rome Statute, the Prosecutor explicitly stated that in order for Palestine to become a “State” and to be able to join the Statute of the Court, it must first be recognized as a “Non-Member State” by the United Nations General Assembly.

Accordingly, UN Member States voted on Resolution 67/19, particularly with regard to the International Criminal Court. The resolution was adopted by a majority of 138 votes to 9, with 41 abstentions. Thus, the decision was issued allowing Palestine, as a state, to accede to the Rome Statute, to become a state party to it, and for the court’s system to be applied in the Palestinian territories that the court defined as “the West Bank, Gaza, and East Jerusalem.”

Thus, Palestine’s membership as a state was accepted in 2015, provided that the court’s jurisdiction will apply to the Palestinian territories starting from April 1, 2015. Immediately after Palestine’s accession, as a state party, the Secretary-General of the United Nations notified the other states parties of its accession.

D. The court violated the system of “integration” with the “Israeli judiciary”

The Court's jurisdiction is defined as a “complement” to, rather than a substitute for, national criminal jurisdictions, exercising its jurisdiction when national regimes are “unable” or “unwilling” to investigate and prosecute “natural persons” who commit the most serious international crimes under international law.

Of course, the drafters of the Statute were aware that States might deliberately use the pretext of submitting accused persons to the national judicial system in order to achieve impunity. Therefore, the system specifies that the court remains competent in several cases, including the following:

i.  When the case is the subject of a complaint or trial by the competent state, but this state does not have the full will or ability, with certainty, to initiate an investigation or conduct a trial.

 

ii. When it appears that there is a lack of desire on the part of the State concerned, and this is evident in the fact that there has been an unjustified delay in the procedures, in a manner that conflicts in these circumstances with the intention of bringing the person concerned to justice, or it has not initiated the procedures, or is not conducting them independently. or is impartial, or was initiated or conducted in a manner inconsistent in the circumstances with the intention of bringing the person concerned to justice.

iii. If this internal trial took place formally in order to:

- Protecting the person concerned from criminal liability for crimes within the jurisdiction of the court, or

- That the trial was not conducted in an independent or impartial manner, in accordance with due process recognized under international law, or was conducted under certain circumstances in a manner inconsistent with the intention to bring the person concerned to justice.

Therefore, the argument that the court violates the principle of complementarity, cannot be taken into account, because of Israel’s failure to initiate any trials inside “Israel” regarding the charges brought by the court, in addition to the previous mock trials of Israeli “army” officials regarding their crimes against the Palestinians. The inability of the Israeli judiciary to put Netanyahu, who is accused of internal corruption cases, on trial is also evidence of the court’s ability in the state of Israel to hold accused criminals accountable; how can the judiciary itself be able to hold Netanyahu and others accountable for international crimes committed in Gaza when it failed to hold Netanyahu account for crimes committed the State of Israel and the citizens of Israel?