EXPLAINER

A former ICC president answers questions about the top court’s jurisdiction in the Israel-Hamas war.

By Chile Eboe-Osuji

MAY 7, 2024, 12:22 PM

In the weeks following Hamas’s Oct. 7 attack on Israel last year, the top prosecutor of the International Criminal Court (ICC), Karim Khan, repeatedly warned those engaged in the war to proceed with extreme care—specifically cautioning against using starvation as a weapon of war.

Six months on, with Gaza experiencing a “full-blown famine” and more than 75 percent of its population displaced, the Israeli and international media are abuzz with news about the ICC potentially issuing arrest warrants against senior Israeli officials—including Prime Minister Benjamin Netanyahu.

“Israel expects the leaders of the free world to stand firmly against the ICC[’s] outrageous assault on Israel’s inherent right of self-defense,” Netanyahu said in a video statement last week.

Though many, including in the U.S. government and media, have questioned the ICC’s jurisdiction and called on the court to back down, the ICC is entitled to adjudicate on the legality of both Israel’s and Hamas’s conduct in the war. Here is why.

What is the ICC?

Established in 2002, the ICC is an international court that has the ability to prosecute individuals accused of criminal conduct including genocide, crimes against humanity, war crimes, and aggression.

Unlike the International Court of Justice (ICJ), which is also based at The Hague and adjudicates the responsibility of states, the ICC does not indict a state or a people. In his video statement last week, Netanyahu said the ICC arrest warrants would “put Israel in the dock.” This view is wrong. ICC prosecutions are limited to questions of accountability of individuals for their own conduct alleged as crimes. The ICC will not indict the state of Israel or its citizenry.

Does the ICC have jurisdiction over Israeli nationals?

The ICC can prosecute nationals of a state that is party to the Rome Statute. It can also prosecute crimes committed on the territory of a state that is party to the treaty whether or not the defendant’s state is party to the Rome Statute.

Even though Israel is not a party to the treaty, Palestine is a member state. Thus, the ICC can prosecute Israeli officials for complicity in crimes that Israel Defense Forces (IDF) soldiers allegedly committed on Palestinian territory. Conversely, the court has jurisdiction over individual members of Hamas (as Palestinian nationals) for the international crimes they allegedly committed in Israel as well.

The same legal principle has been used in the case of Russia, which is not a party to the Rome Statue. In 2022, a group of 39 countries, including France, Germany, and the United Kingdom, called on the ICC to investigate the Russian invasion of Ukraine. This resulted in the ICC issuing an arrest warrant against Russian President Vladimir Putin for committing war crimes on Ukrainian territory—a move that was applauded by U.S. President Joe Biden.

Thus, it would be contradictory for any of these states to accept the ICC’s jurisdiction over Russian nationals but not those of Israel.

Why is this controversial?

On the eve of his appointment as the United States’ chief prosecutor for the Nuremberg trials, Supreme Court Justice Robert H. Jackson said, “We cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national advantage.” This is a rule of good faith that must guide attitudes toward the world’s top courts.

In inquiring into a charge, the ICC singularly focuses on whether the defendant is guilty of the crime as charged according to international law. That inquiry is devoid of politics—or political interference.

It is regrettable that some states have been unwilling to support the court—notably in the execution of arrest warrants—when their friends and allies are concerned. For example, many African and Middle Eastern governments, such as the Democratic Republic of the Congo, Jordan, Malawi, Nigeria, and South Africa, failed to arrest former Sudanese President Omar al-Bashir when he traveled to their countries.

This has left many of the court’s arrests warrants unexecuted. In some instances, member states such as Canada, Germany, Nigeria, and the U.K. have made public statements in support of their political allies in situations before the court, notwithstanding that such statements are purely political and tend to undermine the global perception of the court.

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What would an ICC indictment mean?

Though it remains unconfirmed, it is likely that any ICC arrest warrant against Israeli officials would include the charge of the use of starvation as a weapon of war in Gaza, given the utterances of Israeli officials themselves and the obstruction of food and aid that have been widely decried by many.

However, arrest warrants and indictments do not mean that the persons charged are guilty of the crimes. While an ICC inquiry is ongoing, the defendant will enjoy the presumption of innocence throughout and will be afforded every opportunity to defend themselves.

At the end of the trial, the three judges will decide—by majority—whether the evidence the prosecutor marshaled against the defendant satisfied the required standard of proof for conviction. And that bar is very high.

While there have been many cases at the ICC where the judges convicted the defendants because that high standard of proof was met, there have also been cases in which ICC judges have acquitted defendants at the end of their trials or appeals. Notable examples include former Ivorian President Laurent Gbagbo and one of his ministers, Charles Blé Goudé, who were acquitted at their trial. The conviction of Jean-Pierre Bemba, a former Congolese senator and vice president, was overturned on appeal.

Ultimately, the question turns to what arrest warrants would mean, in the meantime, for Israeli officials. Based on the ICC’s previous experience, it would not mean an immediate arrest and trial. Bashir has still not been arrested or tried, even though his arrest warrant was issued in 2009. For a long time, before he was deposed, he kept traveling to friendly states that did not arrest him. Their argument was that customary international law recognized immunity for him as a head of state. But finally in 2019, the ICC Appeals Chamber stated clearly that no such immunity existed in relation to cases before international tribunals, especially the ICC.

Thus, the immediate problem for Israeli officials under any ICC arrest warrant would be that the court’s 124 member states would be under a legal obligation to arrest such officials if they traveled to any of those 124 countries. That obligation should not be underestimated—just last year, Putin canceled his plans to attend the BRICS summit in South Africa, in the apparent light of Pretoria’s obligation to arrest him.

Chile Eboe-Osuji is a former president of the International Criminal Court. He is now a distinguished international jurist at the Lincoln Alexander School of Law of the Toronto Metropolitan University, and the author of International Law and Sexual Violence in Armed Conflicts (2012) and How Heads of State Lost Immunity for International Crimes (forthcoming). Twitter: @EboeOsuji

source https://foreignpolicy.com/2024/05/07/icc-arrest-warrant-israel-netanyahu-gaza/