ICC Warrants Requested and Six Months Later Still No Word: What’s Going On?

I often try to show how the international legal system and human rights organizations fail to help bring about their lofty visions.  This piece is a bit different. The ICC Prosecutor requested arrest warrants against Israeli leaders back in May, and still nothing has been done. This is leading Israel’s enemies to accuse the ICC judges of pro-Israel bias and allege improper political interference. There is no reason to believe this is true, but rather reflects their own bias. Instead, the lengthy delay can be easily attributed to the enormous complexity of this case. Here I explain the numerous, sometimes unrelated reasons why this matter is so difficult so we appreciate why it’s taking so long and will be better positioned to understand whatever ruling finally comes.

The Request

As is by now well known, on May 20^th International Criminal Court (ICC) Prosecutor Karim Khan requested arrest warrants for Israel’s Bibi Netanyahu and Yoav Gallant for war crimes charges related to Gaza. In order for these warrants to actually be issued, the request must be approved by a panel of three ICC judges. Since May, around 70 friend of the court briefs have been submitted, along with a lengthy response from the Prosecutor, but the panel has still not ruled. Here is an outline of some of the difficult questions that the judges will have to answer to make this decision. At the end I’ll explain how due to the technical nature of many of these issues there is an overwhelming likelihood that whatever decision they do finally reach will be misunderstood.

Jurisdiction I- Is Palestine a State?

The most basic question a court must address before proceeding to business is whether it has jurisdiction. ICC jurisdiction in this case is based on Palestine’s acceptance of the Rome Statute, which is the founding document of the ICC. This would give the court jurisdiction over any crime committed on Palestinian territory.

In order to do this, Palestine must be a state. Statehood determinations is tricky, as there is no one agreed upon definition. But back in 2021 another panel of ICC judges already ruled that Palestine is a state, although with the proviso that determination was tentative and would need to be revisited should any arrest warrants actually be requested. It seems doubtful that the ICC would bring this back into question now, though, as international support for Palestinian statehood has only grown in the interim. For example, last May a resolution in favor of fully admitting Palestine to the UN passed with the support of 143 countries, with the only obstacle to implementation being the US veto in the Security Council. So this is the one question that may not be hard for the judges to resolve.

Jurisdiction II- Israeli Nationals

However, this leads to another much more delicate jurisdictional issue that still must be faced. The ‘State of Palestine’ which is recognized by the UN and the ICC is governed by the Palestinian Authority (PA). The PA came into being in the 1990s as a result of the Oslo Accords. Those same Oslo accords state that the PA has criminal jurisdiction over its own nationals and foreign nationals while in its territory, but not Israelis. This means according to the Oslo Accords, if an Israeli would be accused of committing a crime on Palestinian territory, only Israel would have authority to try and punish that person.

The argument then becomes that if the PA does not have criminal jurisdiction over Israelis, it cannot transfer that jurisdiction to the ICC. Therefore even if one accepts that Palestine is a state capable of acceding to the ICC’s statute, that would only give the ICC jurisdiction with regard to its own citizens and foreigners, but not over Israelis such as Bibi Netanyahu and Yoav Gallant.

ICC prosecutor Karim Khan counters that the Oslo Accords should not be understood as reducing or limiting the PA’s authority, and in fact criminal jurisdiction is an inherent feature of sovereignty that cannot be given away via a bilateral agreement. Rather, in the Oslo Accords the PA only agreed not to exercise its criminal jurisdiction over Israelis and to defer to Israel on such matters. But since that authority still fundamentally rests with the PA, the PA can delegate it to the ICC.

But Khan’s point is better suited for a pre-existing state. For example, if State A signs a treaty not to prosecute nationals of State B, we all understand State A still fundamentally has that authority but is just temporarily agreeing not to use it. However, this may not be the case with regard to the PA since it was actually created by the Oslo Accords. The PA did not have criminal jurisdiction prior to coming into existence, and therefore its powers may be limited to what the Oslo Accords say. There are numerous more nuanced arguments and counter arguments that go on from here.

Another possibility would be to reject the premise that the ICC can only have powers possessed by its member states that said member states have delegated to it. Perhaps international organizations can have powers that go beyond any individual members? Several international law experts have advanced such a view. However, this is deeply controversial and reassurances that the ICC only has delegated powers only have been important in gaining the ICC international legitimacy and acceptance. For the judges to veer from this here would have far reaching consequences.

International or Non-International Armed Conflict

Many of the crimes Khan is requesting arrest warrants for are detailed in section 8(b) of the Rome Statute. For example, 8(2)(b)(xxv), which Khan accuses Netanyahu and Gallant of violating, reads:

Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions

Note the phrase ‘international armed conflict’ in the first sentence. This means these prohibitions only apply in ‘international armed conflict’, as opposed to armed conflicts between states and non-state armed groups. This was expanded to include ‘non-international armed conflicts’ via an amendment in 2019, but Palestine never ratified it so that doesn’t apply here.

Conventional wisdom would seem to be that since the current Gaza war is between Israel and Hamas, it should be categorized as a ‘non-international armed conflict’ (i.e. a war between a state and an armed group). As such the warrants (at least with regard to many of the charged crimes) would need to be dismissed on what seems like a technicality.

Khan is well aware of this, and therefore he already asserted in his statement announcing the charges that the Gaza war is not just a non-international armed conflict between Israel and Hamas, but running in parallel is an international armed conflict between Israel and Palestine. That enables him to get jurisdiction over these crimes.

However, this legal chain becomes quite tenuous. ICC jurisdiction is based entirely on Palestine’s acceptance of the Rome Statute, even though Palestine (i.e. the Palestinian Authority) hasn’t actually controlled Gaza for nearly 20 years. So Khan says that Gaza is truly territory of the PA, just occupied by both Hamas and Israel in some undefined proportion. Then by fighting Hamas, Israel is also fighting the PA, since even though the PA presumably wants Hamas to stop occupying its territory the PA doesn’t want Israel to fight this war to do it. Confusing? That’s why this might be difficult for the judges.

It seems to me that if the judges go along with saying the Israel-Hamas war is international based on this slight tie to the Palestinian Authority, their logic could be used to internationalize nearly any conceivable future armed conflict. Now you might wonder why not. After all, what’s the difference? Whether a war is international or non-international hardly makes a difference to the innocent people who are starving. I’ll just say here the distinction between international and non-international armed conflicts is important in the history, philosophy, and makeup of humanitarian law and the judges will have to consider the potentially far ranging implications of whatever they decide.

Section 18 Notice

When opening an investigation, the ICC Prosecutor is obligated to send countries involved what is called a ‘section 18 notice’. This is basically a letter explaining the nature of the intended investigation which gives the country an opportunity to say if it is conducting its own investigation that is substantially similar to what the ICC intends. If so, due to the principle of complementarity, the ICC would need to defer to that country.

The ICC sent Israel such a letter in 2021 regarding its investigation of war crimes possibly committed in previous Gaza wars. Israel maintains that the prosecutor should have sent a new, updated letter before investigating the current war and that the panel of judges should set aside the request for warrants until the prosecutor does this and gives Israel a chance to respond.

Khan says this is not necessary. He notes that section 18 letters don’t have to detail every potential charge or defendant, just generally outline the parameters of the planned investigation. And he says that the current Gaza war is just an intensification of the previous ones, and therefore the current investigation is just an extension of the previous investigation and no new notification is required.

But Israel says this isn’t the case. The charges Khan is bringing against Netanyahu and Gallant are completely different than the charges mentioned in the 2021 notification, which spoke only of improper use of force against civilians but said nothing of starvation. Also, there was no mention in 2021 of investigating high ranking government officials. To sum up, Khan says same war, same letter. Israel says different alleged crimes need a different letter. This seems to me like truly a matter of judgment, and there’s no way to guess what the judges will decide.

While this is may again seem like something of a technicality in this case, this is a key issue for the ICC. On the one hand, investigations have to be allowed to evolve and develop as new evidence is discovered and so section 18 letters can’t spell everything out. On the other hand, an ICC investigation cannot be a totally open ended fishing expedition that effectively transfers all responsibility for prosecuting atrocities from a state to the ICC. The decision here will go a long way towards establishing the scope of section 18 letters in the future.

The Evidence

After all that, we get to the substance of the charges. In order to issue the warrants, the judges have to be convinced that Khan has evidence establishing ‘reasonable grounds’ to believe Netanyahu and Gallant are guilty of the accused crimes. The procedure for issuing warrants is ‘ex-parte’, meaning it is only between the judges and the prosecutor and the judges therefore rely completely on information the prosecutor provides. Opportunity for cross-examination or for the defendants to submit their own evidence would take place at a potential future trial.

A consequence of the accused having no representation or opportunity to speak is that that the prosecutor therefore has a high ethical obligation to present evidence evenhandedly and include any information that might tend in favor of the defendant. Here Khan is running into some trouble.

A friend of the court brief was submitted by a group of people with significant military experience (they called themselves the ‘High Level Military Group’) presenting evidence that Netanyahu and Gallant are not guilty. A group called ‘UK Lawyers for Israel’ also submitted a lengthy letter with similar information. Khan asked the court to disregard this entirely at this stage of the proceedings, saying that this type of outside evidence would only be proper in the context of an actual trial but at the stage of just issuing warrants should be ignored.

But Khan’s assertion that arrest warrants should be based entirely on evidence he presents and any cross examination should wait for trial may be legally correct but is in this case still a bit suspect. Since the ICC has no power to enforce its warrants, it is highly unlikely there will be a trial anytime soon. Therefore the issuance of warrants will likely be seen by the public as a confirmation of the defendants’ guilt, and it’s reasonable to therefore ask that extra care be taken. Also, the evidence Khan submitted is confidential, so there is no way for the public to know what facts the arrest warrants would actually be based on. Based on this UK Lawyers for Israel has gone so far as to accuse Khan of violating legal ethics by attempting to manipulate the ICC panel by denying it full information.

So here the judges are faced with two questions. First, to what extent should they simply accept what Khan tells them as their only source of information to settle the question as to whether there are reasonable grounds that Netanyahu and Gallant are guilty, or should they look to friend of the court briefs and other submissions as well? Then of course they must still determine whether the evidence Khan has is persuasive with regard to the highly serious charges.

If anyone is interested in more about this issue see an article I wrote in September titled ‘Khan Must be Careful’.

Decision Likely to be Mischaracterized and Misunderstood

One thing seems certain- whatever decision the judges come up with is likely to be mischaracterized and misunderstood.

If the judges do go ahead and issue the warrants, this will undoubtedly be portrayed by Israel enemies as judicial confirmation of war crimes. But this is certainly not the case. Most obvious, warrants require only reasonable grounds to believe the defendant may be guilty, not proof beyond a reasonable doubt. But more important, the judges may decide that at this stage they should rely only on the limited bit of evidence presented only by the prosecutor. There will have been no opportunity for the defendants to state their case, for the prosecutor’s evidence to be questioned or cross-examined, or for additional evidence not supplied by the prosecutor to be heard. Should there ever actually be a trial, the final decision could easily be acquittal.

If the judges do not agree to issue the arrest warrants, it’s inevitable Israel’s enemies, convinced one hundred ten percent that the accusations are true, will try to impugn the motives of the judges. We’ll hear that the judges cowered to some sort of personal or professional fear, are somehow biased in favor of Israel, that the system is rigged in Israel’s favor, and so forth. Far more likely is that they will have made a principled decision regarding any of the issues above that proper adherence to international law and ICC procedures meant turning the prosecutor down.

This decision is likely to be one of the most complex in the history of the ICC. It will be studied and debated extensively, and have lasting impact many decades into the future. I want to be clear that what I wrote here is only an overview- for a more scholarly treatment of at least some of the above issues I recommend this article by Marty Lederman. If you are interested in more background on other facets please let me know.

Also a reminder that the original warrant applications were also for three leaders of Hamas. I disagreed with the prosecutor’s decision to request the Hamas warrants at the same time as the ones for Israel’s leaders, which he evidently believed was necessary to create an appearance of balance. However, now that all three named Hamas leaders are dead, those warrant requests are moot and the decision now is only whether or not to issue arrest warrants for Netanyahu and Gallant.

I think it’s a shame that all these questions are being decided by only a three judge panel. There would be a benefit to having a larger group of judges so a wider variety of opinions and perspectives would make their way into the decision.

We have no idea when the final ruling will come. In the meantime, as flawed as the ICC is and as critical as we may be of its function, let’s respect the process of the judges taking the time to thoroughly do their jobs.