Applications for Arrest Warrants in the Situation in Palestine: In Defence of the Legal Process

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The recent announcement by the Prosecutor of the International Criminal Court (ICC) seeking arrest warrants for leaders of both Israel and Hamas has sent shockwaves through the region. Unlike last year’s similar action against Russian President Vladimir Putin and Maria Lvova-Belova, which received widespread approval from Western states, the ICC Prosecutor’s application on 20 May 2024 marked the first time the ICC is pursuing the leader of a Western-backed state.

Prosecutor Karim A.A. Khan KC stated that the arrest warrant applications resulted from an independent and impartial investigation, examining both incriminating and exonerating evidence, with support from a panel of international law experts. He emphasised the review of extensive (but, at this stage, confidential) evidence and legal analysis conducted by his Office before submitting the applications to the Pre-Trial Chamber.

Given the polarised history of the Israeli-Palestinian conflict, the Prosecutor’s decision inevitably sparked extensive debates and responses in various forums. These ranged from critical, yet constructive, commentary to outright ad hominem attacks on the Prosecutor and/or the panel of experts. For instance, an article appearing in The Telegraph the day after the Prosecutor’s application closely resembled the infamous ‘Enemies of the People’ article that sought to expose and attack three High Court judges for ‘sabotaging’ Brexit. The Telegraph article similarly held that the expert panel was ‘populated by a gaggle of British human rights lawyers’ and focused on discrediting their work. It is at this point that other international lawyers need to speak up.

From a quick review of the responses, there would appear to be four main criticisms of the Prosecutor’s decision to seek arrest warrants. The first and second may be categorised as ‘legal’ questions, and the third and fourth as ‘political’ critiques:

(1) Questions around law and fact;

(2) Questions around impartiality;

(3) Critiques relating to moral equivalence; and

(4) Critiques relating to lawfare.

This post will briefly consider the above.

(1) Questions around law and fact

In his press briefing, the ICC Prosecutor stated that, based on the evidence collected and examined by his Office, there were reasonable grounds to believe that three members of Hamas (Sinwar, Al-Masri, and Haniyeh) bore criminal responsibility for war crimes and crimes against humanity committed in Israel and the State of Palestine (Gaza Strip) from at least 7 October 2023. These charges include:

  • Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;
  • Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to Article 8(2)(c)(i);
  • Taking hostages as a war crime, contrary to Article 8(2)(c)(iii);
  • Rape and other acts of sexual violence as crimes against humanity, contrary to Article 7(1)(g), and also as war crimes pursuant to Article 8(2)(e)(vi) in the context of captivity;
  • Torture as a crime against humanity, contrary to Article 7(1)(f), and also as a war crime, contrary to Article 8(2)(c)(i), in the context of captivity;
  • Other inhumane acts as a crime against humanity, contrary to Article 7(l)(k), in the context of captivity;
  • Cruel treatment as a war crime contrary to Article 8(2)(c)(i), in the context of captivity; and
  • Outrages upon personal dignity as a war crime, contrary to Article 8(2)(c)(ii), in the context of captivity.

The Prosecutor also submitted that there were reasonable grounds to believe that two members of the Israeli government (Netanyahu and Gallant) bore criminal responsibility for war crimes and crimes against humanity committed in the Gaza Strip from at least 8 October 2023. These charges include:

  • Starvation of civilians as a method of warfare as a war crime contrary to Article 8(2)(b)(xxv) of the Statute;
  • Wilfully causing great suffering, or serious injury to body or health contrary to Article 8(2)(a)(iii), or cruel treatment as a war crime contrary to Article 8(2)(c)(i);
  • Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to Article 8(2)(c)(i);
  • Intentionally directing attacks against a civilian population as a war crime contrary to Articles 8(2)(b)(i), or 8(2)(e)(i);
  • Extermination and/or murder contrary to Articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
  • Persecution as a crime against humanity contrary to Article 7(1)(h);
  • Other inhumane acts as crimes against humanity contrary to Article 7(1)(k).

After the Prosecutor submitted these applications, a number of commentaries appeared focusing on questions of law and/or fact presented in the applications and/or the expert panel report. Questions of law included, inter alia, questions around the legal classification of the conflict and/or questions around proving the elements of the above crimes, such as starvation, where ‘the issue of intentionality’ is key (see here). On this point, Cohen and Shany posited that: ‘the most difficult aspect of the request for arrest warrant relates, in our mind, to the question of intent’ (see here).

Others focused on questions of fact, questioning the quality and quantity of evidence evaluated by the Office of the Prosecutor (OTP) and/or the panel of experts, while at the same time admitting that such information was not yet in the public domain (see, for example, here). One such commentary questioned:

‘whether the OTP inter alia (a) used proper investigative methods and practices when conducting its investigation; (b) made use of all available video and photographic evidence, as well as witness testimony; and (c) has sought to obtain, and has retained, material capable of exonerating the suspects (consistent with the obligation conferred by Article 54(1)(a) of the Rome Statute).’

These critiques are important but premature at this stage of the legal process because, to date, much of the evidence and information that the Prosecutor intends to rely on for the above charges has not been made public. This delay, while frustrating for many, follows the normal legal process.

The Prosecutor has confirmed that the charges in these applications are based on evidence collected and examined by his Office, including site visits, interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery, and statements from the alleged perpetrators. This aligns with his duties under Article 54 of the Rome Statute. We will soon receive more detail on questions around law and fact, when the applications will be considered by the ICC Pre-Trial Chamber which, on the basis of Article 58(1) of the Rome Statute, will have to decide whether there are ‘reasonable grounds to believe’ that the person has committed a crime within the jurisdiction of the Court.

(2) Questions about impartiality

Another group of critiques involved suggestions of bias, specifically regarding the composition of the expert panel but which, if substantiated, would also implicate the OTP itself. This link was indicated in Kern and Herzberg’s post, where the authors suggested that, by appointing the expert panel, the Prosecutor was effectively ‘outsourcing the OTP’s review function’ under Article 54(1)(a) of the Rome Statute. The authors asked rhetorically: ‘Was the Panel’s selection, and the identity of certain of its members, merely an exercise in confirmation bias?’

It was The Telegraph article mentioned above, however, that explicitly set out to frame the panel of experts as ‘biased’. The article pointed to past statements made by individuals like Baroness Helena Kennedy KC who, as a prominent human rights lawyer, had regularly commented on human rights challenges around the world. According to The Telegraph article, the following was a statement that purportedly indicated bias: ‘Water is a basic human right and its denial violates international law. It is a war crime… Israel has a right to self-defence. But it has to be proportionate and in accordance with international law.’

It is not immediately clear which part(s) of the above statement are supposed to suggest ‘bias’ – whether it is the assertion that water is a basic human right, or the acknowledgment that Israel has a right to self-defence that must be exercised proportionately and in accordance with international law. What is clear, however, is that seeking to silence and/or discourage international lawyers from demanding compliance with international law due to potential accusations of ‘bias’ would be profoundly misguided. Such demands are fundamental to upholding international law standards and ensuring justice.

External experts are sometimes invited to participate in an evidence-review under appropriate confidentiality arrangements during investigations or trials to reduce individual bias. Ironically, the Prosecutor made a deliberate attempt to consult a broader array of experts in this case, within appropriate confidentiality arrangements, precisely to promote greater impartiality, to consider alternative explanations or viewpoints, and to reduce individual bias in the final decision. To this end, in addition to involving members of the OTP, the Prosecutor also considered the views of the expert panel – whose published report further reflects a measure of transparency – and other OTP Special Advisers.

Ultimately, however, the decision to seek arrest warrants rested with the Prosecutor. As noted above, this is only the beginning of a legal process with numerous checks and balances. A judge of the ICC Pre-Trial Chamber will now independently review the evidence and decide on the next steps.

(3) Critiques relating to moral equivalence

The critique of ‘moral equivalence’ is rooted in ‘just war’ theory, which emphasises the distinction between just and unjust actions in conflict, thereby rejecting the notion that all sides’ actions are morally equivalent. As a critique, it has frequently been deployed, sometimes to great effect, as a political strategy to suppress demands for justice. As a critique of international criminal justice, in a sense, it represents the other side of the ‘victor’s justice’ critique. Where courts pursue one party to a conflict, it’s ‘victor’s justice’; where they pursue more parties, it’s ‘moral equivalence.’ In Rwanda, the ‘moral equivalence’ argument was used as part of a three-step strategy to deny justice to victims of the RPF-led regime (see here). Waldorf notes:

‘Over the years, President Kagame has countered such criticism in three ways. First, he minimizes both the nature and extent of RPF crimes, acknowledging only “revenge killings” by a small number of rogue soldiers. Second, he claims the Rwandan government has brought those soldiers to justice. Finally, he equates justice for RPF crimes with genocide denial: While some rogue RPF elements committed crimes against civilians during the civil war after 1990, and during the antigenocidal campaign, individuals were punished severely…To try to construct a case of moral equivalency between genocide crimes and isolated crimes committed by rogue RPF members is morally bankrupt and an insult to all Rwandans, especially survivors of the genocide. Objective history illustrates the degeneracy of this emerging revisionism.’

In the present context, this argument has been used by Netanyahu, who described the Prosecutor’s applications for arrest warrants against Israeli leaders as ‘a moral outrage of historic proportion….Mr Khan creates a twisted and false moral equivalence between the leaders of Israel and the henchmen of Hamas.’ Making a similar point, the US President, Joe Biden stated, ‘whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas.’ An article in The Spectator similarly criticises the Prosecutor’s request as drawing an implicit equivalence between terrorists and the democratic state fighting them.

From the perspective of international criminal justice, however, the ‘moral equivalence’ argument does not hinder the prosecution of alleged crimes committed by different parties to a conflict. What matters here is not the relative wrongfulness of the acts, but their legality or otherwise. If alleged acts meet the threshold of ‘the most serious crimes of concern to the international community as a whole’, then they need to be prosecuted, irrespective of their relative moral repugnance.  

This is a legal assessment based on the need for justice and combating impunity for alleged international crimes, not a moral judgment. It stems from the principle that all parties in a conflict must adhere to international law, regardless of who initiated the conflict. Legally, and especially from the victims’ perspective, it matters little whether the alleged crimes were committed by terrorists or those fighting them.

(4) Lawfare

Another critique is that the Prosecutor is engaging in ‘lawfare’ by seeking these arrest warrants. The Spectator’s article, titled ‘How Israel should fight back against the ICC’s lawfare,’ argues that because the Prosecutor is targeting members of the Israeli government, ‘Israel and its supporters should begin in earnest a campaign advocating for mass withdrawal from the Rome Statute, which would effectively abolish the ICC.’ The author suggests that the ICC should then be ‘wound up’ and replaced with ‘a more suitable institution found to fulfil its purpose.’ Of course, ‘a more suitable institution’ is one that does not pursue Western-backed states.

Lawfare is often discussed in government, academic, and media circles, defined as ‘the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.’ It is a critique often levelled at courts involved in ongoing conflicts. And in this case, it would presumably refer to the ICC being used to ‘wage’ lawfare against Israel – which, of course, would be wrong and a clear abuse of the legal process.

There is, however, little evidence to support the claim of lawfare at this stage. The ICC Prosecutor has publicly affirmed his decision to pursue these applications based on reasonable grounds to believe that serious crimes, including starvation, extermination, and persecution, have occurred, constituting serious breaches of international law. He has also stated that extensive evidence has been reviewed to substantiate these charges. While we currently have to ‘trust’ the Prosecutor’s assertion, the Pre-Trial Chamber will soon review the evidence and decide whether to confirm the arrest warrants. What is clear from the Prosecutor’s affirmation, however, is that the proposed charges are not spurious; rather they align with the ICC’s objective of ending impunity for perpetrators of serious crimes.

Conclusion

In concluding his press briefing, the Prosecutor stated:

‘Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, we will be loosening the remaining bonds that hold us together, the stabilizing connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.’

By seeking these arrest warrants, the Prosecutor has activated the ICC’s judicial process, which includes numerous checks and balances to ensure only well-founded claims advance. As mentioned earlier, some would be more than happy to see the ICC discredited and fail. While constructive critique of the ICC and its work is important, as international lawyers, we must stand against attacks that aim to short-circuit the legal process and the normal workings of international criminal law. Only perpetrators will benefit from that.

The editorial team notes that Professor Marko Milanovic was not involved in reviewing or editing this post.

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