ICC Indictments: An Update

On May 24^th Karim Khan, the prosecutor of the International Criminal Court (ICC), announced that he was seeking arrest warrants for Israel’s Prime Minister and Minister of Defense, along with Hamas leaders, for war crimes in Gaza. Now the matter rests with a panel of three ICC judges who must decide whether the warrants should be issued. I’ve written previously about the many complex issues they face. While we await their ruling, here is an update about recent developments in this case.

Public Council for the Defense

On August 16^th the ICC Office of the Public Council for the Defense (OPCD) submitted its brief to the judges (read it here). Since the accused in this case have not yet even been formally indicted, as of now they do not have standing before the court. Therefore, the job of the OPCD is to look out for their rights at this stage of the proceedings.

The OPCD is harshly critical of the prosecutor’s decision to publicize his request for warrants. They say this public announcement was against court procedures, and also caused reputational harm and prejudicial publicity. The OPCD even cited several instances of major media outlets incorrectly reporting that the ICC had already actually issued a warrant for Bibi Netanyahu’s arrest, only to issue clarifications later. This runs against the presumption of innocence that is fundamental to all criminal proceedings.

A second impact of making the request for warrants public is that over 60 governments, NGO’s, professional organizations, and even private individuals decided to send friend of the court briefs making arguments against or in favor. This creates what the OPCD calls a ‘curious and unfair process’. It doesn’t seem right that all these groups are able to tell the court what they think while the accused still have no standing to speak for themselves. But the alternative, allowing potential defendants to give arguments before the court before a warrant has even been issued for their arrest, doesn’t seem to make sense either (see note 26 in the OPCD brief.) The OPCD therefore urges the court to simply disregard the bulk of these friend of the court submissions and make only the narrowest possible decisions now. Then, if the warrants are issued, at least the accused will have standing to make their own arguments too.

The Prosecutor Responds

The Prosecutor responded to the OPCD and the numerous friend of the court briefs with his own 49 page filing (read it here). He points out that similar to grand jury proceedings in the US, the warrants hearing should be ex-parte, meaning evidence is only submitted by the prosecutor. He therefore joins the OPCD in requesting that the court disregard all the friend of the court briefs except the ones that make arguments related to the Oslo Accords, the only topic regarding which the court explicitly authorized submissions. However, it is difficult to have much sympathy for the prosecutor here. As the OPCD pointed out, his decision to go public with the request is what made this blizzard of friend of the court filings possible.

Regarding the Oslo Accords, the question is whether or not they limit the ICC’s jurisdiction. Several friend of the court briefs (including the one submitted by the United States) point out that the Oslo Accords clearly state that the Palestinian Authority has no criminal jurisdiction over Israeli citizens. Since the ICC only has the authority that its member states delegate to it, by joining the ICC Palestine was at most able to give the ICC jurisdiction over its own citizens and other foreigners on its territory, since that is the only authority it has. This would then lead to the conclusion that the warrants against Hamas leaders can be issued, but the ones against Israeli leaders cannot.

The prosecutor disagrees. He claims this would result in Palestine being treated differently than all other ICC states. He goes to some length explaining how the purpose of the ICC is to make sure that the worst perpetrators of atrocity crimes are brought to justice, and this requires that there be no exceptions or different rules for different groups of people.

Second, he claims that those making the argument that the Oslo Accords limit Palestine’s authority are misunderstanding international law. He writes:

For one intervener (i.e. friend of the court brief), the Oslo Accords “delegated a limited authority” to the Palestinian Authority.  For another, it entailed but a limited transfer of powers to the Palestinian Authority by Israel. . .In short. . .according to these interveners whatever jurisdictional entitlements are enjoyed by the State of Palestine today were in Israel’s gift. This understanding contradicts the basic and universally accepted foundation of the law of occupation. Occupation does not and cannot transfer title of sovereignty to the occupying power (paragraphs 72-73).

In other words, the right to prosecute criminals is an inherent part of sovereignty that Palestine voluntarily committed not to exercise with regard to Israeli citizens via the Oslo Accords. But criminal jurisdiction over everyone in Palestinian territory is fundamentally vested in Palestine, not Israel.

My hunch is that people with a generally pro-Palestinian viewpoint will agree with this emphatically. However, people who are more partial to Israel’s view of the situation won’t, and I’m certain Israel did not understand things like the prosecutor does when it signed the Oslo Accords.

Israel’s View

Israel’s way of looking at it begins by recalling that Palestine was never a nation, as the territory in question belonged to Jordan and Egypt before the Six Day war. Now that Israel has taken control of these territories the Palestinians there are attempting for the first time to assert a right to self-determination. This is far different than the scenario the prosecutor refers to, which is an already established country occupied by another.

Merely claiming a right to self-determination, even if valid, does not create statehood. Statehood can only come through diplomatic negotiation and recognition. Therefore, whatever powers the Palestinian Authority has are in fact a direct result of the Oslo Accords. Claiming the right to self-determination and statehood doesn’t enhance the Palestinian Authority’s powers beyond what those Accords grant it.

While this debate is couched in legal terms, it seems to me more historical and political. It is therefore likely that whatever the court decides will be dismissed by the losing side as the judges playing politics rather than applying the law. To me it’s unfortunate that a matter like this is being brought to a legal setting such as the ICC at all.

With so many complex issues at play, there’s no way to know how the three judge panel will decide or when it will issue its ruling. But when looking at the 60 plus dueling friend of the court briefs and other lengthy documents that have already been submitted at this extremely early stage, one thing seems clear. If the prosecutor’s goal in requesting these warrants was to make a strong, clear statement about the ICC’s authority and ability to prosecute atrocity crimes even in a highly politicized situation like Gaza, he isn’t succeeding.