ICC & ICJ – The courts of last resort

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For weeks, the ICC has been targeted by Israeli government officials who expected the court to issue arrest warrants against Israeli leaders for war crimes and it is now clear that they were right to be concerned.

On May 20, 2024, ICC Prosecutor Karim Khan announced that he had applied for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Galant, as well as the three Hamas leaders – including its leader, Yahya Sinwar.

The Public Prosecutor accuses Hamas leaders of committing war crimes and crimes against humanity resulting from the attack launched by Hamas on Israel on October 7, 2023.

As a standard practice, the International Criminal Court summons those responsible for crimes committed, and therefore accusing Hamas leaders of committing war crimes and crimes against humanity is a procedural part of issuing an arrest request according to the evidence presented before the Public Prosecutor.

While Israeli crimes include using starvation as a weapon and withholding humanitarian aid from the civilian population in Gaza. It is now up to the Pre-Trial Chamber of the International Criminal Court (which is made up of three judges) to issue arrest warrants according to the reasons presented to them by the Public Prosecutor to the Court, a decision that may take weeks or months to consider. Israel’s response to the Public Prosecutor decision was to attack the International Criminal Court.

One might reasonably wonder whether the court has jurisdiction over Hamas leaders and Israeli government officials. Israel is not a party to the Rome Statute and the treaty that established the court, but the “State of Palestine” has become a party to the court since it signed the Rome Statute in 2015 as an observer and in the court. Around the same time, it submitted a declaration accepting the ICC’s jurisdiction “in the occupied Palestinian territories, including East Jerusalem.” Based on this declaration, then-Prosecutor Fatou Bensouda announced that she had opened a “preliminary examination” of the situation in Palestine, and in December 2019 requested a ruling. To clarify the territorial scope of the ICC’s jurisdiction.

In 2021, the Pre-Trial Chamber decided that the court’s jurisdiction “extends to Gaza and the West Bank, including East Jerusalem.”

At that time, the United States objected to the International Criminal Court’s decision to expand its jurisdiction to include those places. The resolution stated that “the Palestinians are not eligible to be a sovereign state and are therefore not eligible to obtain membership as a state, participate as a state, or delegate judicial authority to the International Criminal Court.”

However, the United States is not a party to the Rome Statute, and this limits its influence on how the ICC operates. Moreover, although the United States and Israel do not recognize Palestine as a state, more than 140 other countries do, including This includes Spain, Norway and Ireland as of last week.

Earlier in May 2024, the UN General Assembly voted 143 to nine in favor of a resolution granting new “rights and privileges” to the “State of Palestine” at the UN, granting its delegation almost all rights except the right to vote, a privilege that cannot be It can only be granted by the Security Council, where the United States has veto power.

The United States was one of the nine countries, along with Israel, that voted against the resolution. Following the announcement by ICC Prosecutor Karim Khan, US Secretary of State Antony Blinken reiterated the US view that the ICC has no jurisdiction over “this matter.”

For Israel, the acts in question are its use of starvation as a means of war and deprivation of humanitarian assistance to the people of Gaza. As the statement of the ICC Chief Prosecutor Khan, makes clear, “Israel deliberately and systematically deprived the civilian population throughout Gaza of things indispensable to human survival.”

Here he cited the statement and warning issued by UN Secretary-General António Guterres two months ago, when he said: “1.1 million people in Gaza are facing catastrophic hunger – the largest number of people ever recorded anywhere, at any time” as a result of “total hunger.” “Man-made disaster.”

While the World Food Program Director Cindy McCain has since declared that “massive famine” is occurring in northern Gaza. In mid-April 2024, Samantha Power, administrator of the US Agency for International Development, said it was “credible” to assess famine in parts of Gaza. The United States has repeatedly pressed Netanyahu to increase the flow of aid to Gaza, but largely to no avail.

ICC Chief Prosecutor Khan is likely to focus on starvation and aid restriction for the simple reason that these crimes are the easiest to prove.

The ICC Prosecutor’s request is not the first time these allegations have been made against Israel since October 7, 2023. On March 19, 2024, UN High Commissioner for Human Rights Volker Türk said that Israel’s policies of restricting the flow of aid to Gaza may amount to In the same month, Oxfam, an NGO focused on alleviating global poverty, issued a statement saying that Israel “is using famine as a weapon of war more than five months ago.”

So far there have only been requests for arrest warrants from the ICC and it remains possible that the Pre-Trial Chamber will not approve the requests. However, given the political sensitivity of the issue, it is almost certain that the ICC Chief Prosecutor, Khan, will limit this opening request to arrest warrants, which I believe that he would succeed in obtaining them, and a panel of senior international law experts convened by the ICC’s Prosecutor with jurisdiction over those crimes will set out in the arrest warrant applications and that these crimes have been committed and the suspects are responsible for them.

Since the International Criminal Court does not have its own police to implement its orders, and if its judges decide to issue these arrest warrants, this does not mean in theory that any of the 124 member states of this judicial court is obligated to arrest them if they visit its territory. The member states rarely implement arrest warrants, especially when it comes to a head of state.

For example, former Sudanese President Omar al-Bashir was able to visit a number of member states of the International Criminal Court, including South Africa and Jordan, even though the court issued an arrest warrant against him, and despite his overthrow in 2019, Sudan did not hand him over.

Russian President Vladimir Putin, against whom the International Criminal Court issued an arrest warrant, visited abroad, recently to Kyrgyzstan, Saudi Arabia and the United Arab Emirates, which are not members of the court.

But Putin avoided attending the meeting of the BRICS group (Brazil, Russia, India, China and South Africa) in Johannesburg, which was to implement the resolution.

Israel, like the United States and China, is also not a member of the International Criminal Court.

Many political and military leaders have been tried for war crimes and crimes against humanity. In 2012, the International Criminal Court convicted former Liberian President Charles Taylor of war crimes and crimes against humanity.

Likewise, former Yugoslav President Slobodan Milošević died in his prison cell in The Hague in 2006 while on trial for genocide in the Yugoslav War Crimes Tribunal.

Former Serbian President Radovan Karadzic was arrested in 2008 and convicted of genocide, and his military commander Ratko Mladic was imprisoned in 2011 and sentenced to life imprisonment.

However, Israel still has one surefire way to derail the cases against Netanyahu and Gallant: to investigate them and, if necessary, prosecute them itself. The Rome Statute makes clear that the ICC can only exercise its jurisdiction when a state is unwilling or unable to complete the investigation. If necessary, prosecute the crime itself.

The Office of the ICC chief Prosecutor Khan, said it had not received “any information demonstrating that substantive action has been taken at the local level [in Israel] to address the alleged crimes or individuals under investigation.” If Israel begins an active and genuine investigation into the same cases, it can challenge the invalidity of its admission before the ICC, and this challenge will prevail even if they are ultimately acquitted as long as the proceedings are genuine.

There are sure to be more requests for arrest warrants coming. These matters could also be avoided through a genuine Israeli investigation. In fact, Israel could have succeeded in stalling, and perhaps even blocking the current request, by opening an investigation and then requesting that the court’s investigation be postponed in whole or in part in light of its own domestic procedures, a step it has refused to take.

Meanwhile, the International Court of Justice ordered Israel to stop its attack on Rafah in Gaza in a new ruling, and the judges of the Supreme Court (International Court of Justice) of the United Nations ordered Israel to stop its attack on the city of Rafah in southern Gaza and withdraw from the Strip, in a case filed by South Africa accusing Israel of committing genocide. Collectively, indicating a “tremendous danger” to the Palestinian population.

The decision (ruling) issued on May 24, 2024 was the third time this year that the 15-judge panel issued preliminary orders seeking to curb the death toll and alleviate human suffering in Gaza. Although the orders are legally binding, the court does not have the police to enforce them, and as The principal judicial organ of the United Nations (UN), the role of the International Court of Justice is to settle legal disputes brought before it by States, in accordance with international law, and to express advisory opinions on legal matters referred to it by authorized UN organs and specialized agencies.

While reading the ICJ ruling, Judge Nawaf Salam, President of the International Court of Justice, stated that the temporary measures ordered by the court in March 2024 did not fully address the situation in the now besieged Palestinian enclave and the conditions for issuing a new emergency order were met.

On the other hand, South African lawyers asked the International Court of Justice in The Hague last week to impose emergency measures, saying that the Israeli attacks on Rafah must be stopped to ensure the survival of the Palestinian people, and 13 of the 15 judges of the International Court of Justice agreed to call on Israel to stop its attack, as ordered. The International Court of Justice requires Israel to submit a report to the Court within one month on its progress in implementing the procedures ordered by the Court.

Tariq Yousef AlShumaimry served as Counselor and Chairman of the Finance Committee and Chairman of the General Budget Committee at the Permanent Court of Arbitration in The Hague (PCA) and an observer in the Administrative Council of the Court of Justice International Affairs and Counselor at the Embassy of the State of Kuwait in The Hague in the Kingdom of the Netherlands during this period from 2013 to 2020.

Email: [email protected]

By Tareq Yousef AlShumaimry

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