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Why the ICC (International Criminal Court) should not issue arrest warrants against Israeli leaders

Why the ICC (International Criminal Court) should not issue arrest warrants against Israeli leaders

By Andrew Tucker (Director thinc.), Matthij de Blois (Senior fellow thinc.) and Alessandro Spinillo (Intl. European & US law expert, thinc.)

On Monday 20th May 2024, the Prosecutor of the International Criminal Court (ICC) in The Hague, Mr. Karim Khan KC, announced his request to the Court’s Pre-Trial Chamber to issue arrest warrants against Israeli leaders Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim Al-Masri, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail Haniyeh (Head of Hamas Political Bureau), for war crimes and crimes against humanity.

According to the Prosecutor, there are reasonable grounds to believe that the Israeli leaders are guilty of the following crimes:

  • Starvation of civilians as a method of warfare;
  • Willfully causing great suffering, or serious injury to body or health, or cruel treatment;
  • Willful killing or murder;
  • Intentionally directing attacks against a civilian population;
  • Extermination and/or murder including in the context of deaths caused by starvation; and
  • Persecution;
  • Other inhumane acts as crimes against humanity

This has provoked strong reactions. The Israeli government and Parliament have condemned the move. The US President called the decision “outrageous”. Political leaders in the US have threatened to retaliate with sanctions against ICC personnel. The UK Prime Minister called the move “unhelpful”. Hamas has also rejected the decision.

In our view, a decision to issue warrants against Israeli leaders at this time would be highly problematic for various reasons:

  1. It is immoral, and contrary to the principles of international justice, to equate Israeli and Hamas leaders. Israel is fighting a multi-front war defending itself against an existential threat of violence directed against its citizens, fueled and sponsored by powerful states such as Iran and Qatar. As its Charter clearly states, and its actions demonstrate, Hamas is determined to kill as many Jews as possible and eliminate the State of Israel. It has been consistently attacking Israel and threatening to repeat October 7th. Israel is fully entitled to address and remove the threat facing its citizens, within the constraints of international humanitarian law.
  2. The request is a further demonstration of how the Court is being instrumentalized and politicized by UN member states hostile to Israel. 
  3. Issuing arrest warrants conflicts with the principle of complementarity, whereby the Court should only intervene if the state concerned is unwilling or unable to intervene. Complementarity is a cornerstone of the ICC system. Israel has a robust legal system, and diligently investigates any alleged crimes or violations of the law. Cases concerning alleged violations of humanitarian law in Gaza are already under investigation by Israeli judicial authorities. In these circumstances the ICC should according to  Article 17(1)(a) of the Statute declare such cases inadmissible.
  4. The Court lacks jurisdiction to prosecute Israeli leaders, as Palestine is not a state and Israel is not a party to the Rome Statute. The ICC Pre-Trial Chamber’s decision in 2021 that the Court has jurisdiction undermines the basic principle underlying the Court, namely that it only has the powers that sovereign states confer on it. Palestine is definitely not (yet) a sovereign state, and Israel is not a party to the Rome Statute – so neither can have conferred any powers on the Court.
  5. As explained in a recent op-ed in The Spectator, the Prosecutor’s decision is based on selective and unreliable evidence. For example –
    1. The Prosecutor states that ‘the siege [of Gaza] also included cutting off cross-border water pipelines from Israel to Gaza – Gazans’ principal source of clean water – for a prolonged period beginning 9 October 2023.’ The entirety of this statement is untrue. Prior to Hamas’s devastating attack on 7 October 2023, Israel was supplying less than 10 per cent of the clean water used in the Gaza Strip. In the course of the Hamas attack, two of the three pipelines were damaged, according to the IDF. Israel resumed the supply of clean water through the undamaged pipeline within six days of stopping it and through another pipeline when it was mended shortly afterwards.
    1. Khan also accuses Israel of ‘cutting off and hindering electricity supplies from at least 8 October 2023 until today’. Nine out of the ten power lines from Israel to Gaza were damaged in the Hamas attack on 7 October. Electricity is used by Hamas to light and ventilate its terror tunnels and to launch its rockets aimed at Israeli civilians. Much of the electricity in Gaza is produced by individual generators and Israel has allowed in enough fuel to generate electricity for essential services, despite the risk that this fuel is taken by Hamas.
    1. The Prosecutor referred to ‘the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods’. This ignores the fact that the Rafah crossing is between the Gaza Strip and Egypt, not Israel – and that it was reopened for humanitarian supplies on 21 October. The Kerem Shalom crossing was damaged in the Hamas onslaught on 7 October, but was reopened following repairs on 17 December. The Erez crossing is not equipped for cargo transfers.
  6. Issuing arrest warrants may hamper the negotiations concerning release of the hostages, and it is likely to fuel antisemitism.

We call upon the Court to protect the integrity of the Court, and not to issue these arrest warrants against the Israeli leaders.

Why ICC’s ingrained bias ensures no fair ‘trials’ for Israel

In this Op-ed Senior Fellow Prof. Gregory Rose explains how the ICC has become politicized. According to Rose, “ICC prosecutor Khan pretends Israel must be held to account equally with others. But the problem is not a failure to hold Israel to account, it is a more fundamental failure to treat Israel equally under law. Just as Jews were once excluded from polite society, and subjected to double standards, today Israel is treated as the Jew of the nations to be excluded from international society.” Prof. Rose argues further: “The international legal system is politicised. It is a function of the UN, which in turn is a political institution dominated by non-democratic states. They drive forward their own narrow anti-Semitic interests with the cynical support of hypocrites. Of course, the ICC charges are no surprise.”

Click here to read the full version of the Op-ed

The Hague Initiative for International Cooperation (thinc.) is a global network of international lawyers who challenge the misuse of international law to delegitimize the State of Israel and promote the fair and equal application of law to support international cooperation and development.

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