ICC Indictments- Now the Judges’ Dilemma

On May 20^th, International Criminal Court (ICC) Prosecutor Karim Khan announced that he was seeking arrest warrants for both Israeli and Hamas leaders for Gaza war crimes. However, to be issued, the warrants must still be approved by a panel of three ICC judges.

Numerous countries and organizations have submitted ‘friend of the court’ briefs giving reasons why the judges should or shouldn’t approve this request. Here are some of the main arguments they raise.

Jurisdiction

First, the ICC only has jurisdiction over the territory and citizens of states that agree to it. Israel does not, but Palestine does. So the question becomes whether Palestine is in fact a state able to join the ICC.

In 2021 another panel of ICC judges made a preliminary determination that Palestine does in fact meet the criteria. This is based on the fact that even though Palestine has not been admitted as a full member of the United Nations and some countries refuse to recognize it, it has been accepted as an observer at the UN General Assembly and many nations do recognize it as a state.

But there is a further wrinkle here. The government of Palestine recognized by the United Nations and signatory to the ICC is the Palestinian Authority (PA). According to the Oslo Accords, Israel retains exclusive criminal jurisdiction over its citizens, even when they are in Palestinian territory, and the PA is not authorized to conduct criminal trials of Israeli citizens in any circumstance. So while the PA might be able to allow the ICC to prosecute its own citizens, it is hard to see how it could delegate to the ICC authority to try Israeli leaders since according to the Oslo Accords it has no authority to do so itself.

Palestine claims in its submission that this limitation on its criminal jurisdiction should apply only to ordinary crimes, whereas international atrocity crimes are different. In their view the right to hold perpetrators accountable for war crimes is an inherent right of states that cannot be limited by treaty and so the Oslo Accords do not apply.

Article 18 Notice

Before beginning an investigation, the ICC prosecutor must notify the state in question in order for that state to determine whether it will conduct on its own an investigation which is substantially similar to what is planned by the ICC. This is because ICC jurisdiction is complimentary to the jurisdiction of states- the ICC can only investigate and prosecute matters that states are unwilling or unable to prosecute themselves.

Since this notification is given by the ICC before an investigation begins, it cannot specify exactly who may be accused or exactly what crimes they may be accused of. But it does have to give a good enough description of what the ICC is planning to investigate so a state has enough detail to be able to do something substantially similar if it wishes.

In this case, the prosecutor is relying on the Article 18 notification sent to Israel in 2021, which said that the ICC would investigate possible war crimes in previous Gaza wars. The problem is that the Hamas attack of Oct. 7^th 2023 seems to have begun a completely new phase of hostilities. At the very least it’s clear that this was a turning point, and the scope and intensity of military activity is far greater now than before. It may also be important that while the 2021 letter mentioned war crimes such as using indiscriminate force and targeting civilians, it did not say anything about using starvation and withholding of aid as a method of war, which is what the prosecutor seeks to indict Israeli leaders for now.

It therefore seems the prosecutor may have erred by not commencing a new, separate investigation after October 7^th, which would include sending Israel a new Article 18 notice. Of course, the opposing view (which seems to be what the prosecutor is relying on) is that the current Gaza war is just an extension of the previous ones. While it is of greater scope and intensity, the core issues and accusations remain the same.

While the prosecutor failing to open a new investigation and send a new Article 18 notification is in many ways a technicality, it is still an important point that the judges will have to consider. The hoops necessary to open an investigation, among them the requirement to notify affected countries, are important checks on the prosecutor’s power. Many state parties to the ICC have an interest in ensuring that ICC investigations are not carte blanche for the prosecutor to pursue anything he comes up with, but rather must remain strictly within the confines of what has been authorized and communicated to affected states. The judges have to be careful, because whatever the court decides here may become a precedent for unrelated ICC investigations in the future.

The Evidence

Finally, much as a United States district attorney must persuade a grand jury that there is solid evidence against a defendant before being allowed to issue an indictment, so too the ICC prosecutor must convince the judges that he has sufficient evidence Israeli leaders are committing the crimes he is accusing them of in order for arrest warrants to be issued. In the press release announcing the indictments, the prosecutor referred to many statements of United Nations officials and other human rights experts saying they believe Israel is starving the Palestinian civilian population and denying the passage of humanitarian aid. But statements or opinions of political figures far away from the Middle East are not evidence that can be used in court.

In fact, several friend of the court briefs contain evidence that Israeli leaders are not guilty. For example, a group of former NATO officials (they call themselves a ‘High Level Military Group’) claims to have interviewed IDF commanders and determined that there never was any policy to deny or interfere with the distribution of aid. They also state:

It is our assessment that whatever food insecurity exists today among the population of Gaza is not due to Israel impeding entry or distribution of aid into the territory – either deliberately or arbitrarily – but to the unavoidable effects of large-scale urban warfare, compounded by Hamas hijacking aid for their own military purposes, allowing criminal elements to seize aid, and in some cases confiscating aid and selling it to the civilian population. . .

Based on our experience and knowledge, Israel is facilitating aid to a level we have not seen in our own militaries and we are not aware of our forces’ efforts or even capabilities to conduct similar operations. We do not believe any other armed forces have ever made such efforts, or achieved such success, in facilitating aid delivery to civilians in enemy territory while still engaged in active hostilities in that same operational environment.

Of course, others see it differently. But the court will have to sort out to what extent allegations against Israel are based in fact, and to what extent they are Hamas propaganda aimed to increase sympathy for the Palestinians and cause Israel political and reputational harm. The ICC panel may conclude that there is enough evidence to issue warrants, with the understanding that the matter would be examined much more thoroughly when and if there is a trial. But it will still have to grapple with the fact that the prosecutor will have the burden of proving his case beyond a reasonable doubt and in this highly complex situation even the most basic facts are far from clear.

To sum up, the ICC panel tasked with deciding this issue has an enormous task on its hands. No one knows what the eventual decision will be, but it’s not at all certain that the prosecutor will succeed at convincing the judges to actually issue the warrants he requested so publicly just a few months ago.