State Objections to the ICC Prosecutor’s Request for Arrest Warrants in the Palestine Investigation

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Almost 8 months into the Gaza War, International Criminal Court (ICC) Prosecutor Karim Khan announced on 20 May that he has applied to the Court’s pre-trial chamber for the issuing of arrest warrants for three top Hamas leaders as well as Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant (the “arrest warrant requests”). The requests made – supported by the findings of an expert panel – cover a wide scope of war crimes and crimes against humanity by both sides of the conflict.

The Prosecutor’s move – widely expected to be underway in recent weeks and already leading to sharp reactions from Israeli leaders as well as U.S. lawmakers before it even happened – is significant in a number of ways. Key among them: this is the first time that an ICC Prosecutor has requested arrest warrants for leaders of a close ally of Western powers. Expectably, several of Israel’s key allies are objecting to the decision of the Office of the Prosecutor (OTP) to proceed to apply for warrants of arrest for Israeli leaders (although it is worth noting that some countries in the West – such as France, Belgium and Australia –, have taken the opportunity to indicate support for the ICC). This post takes a closer look at the objections raised in the immediate wake of the arrest warrant requests, seeking to reflect on their merits.

The objections made so far broadly fall into five categories:

1) It is illegitimate or unwarranted to make an equivalence between Hamas and the Israeli leadership;

2) The ICC has no jurisdiction over alleged crimes in Gaza, (a) because Israel is not an ICC State Party and/ or (b) because Palestine is not a State;

3) The principle of complementarity results that the OTP cannot proceed as it did, at least at this point in time;

4) The process surrounding the OTP’s arrest warrant requests is flawed;

5) Requesting warrants of arrest in the Palestine investigation at this point in time is not helpful because it undermines the prospects for (a) achieving a ceasefire, (b) getting the hostages held by Hamas released, and/ or (c) getting humanitarian aid into Gaza.

I will examine these objections in turn, offering some preliminary thoughts on their legitimacy, including how they relate to previous statements made by the same States in the Palestine investigation and in other contexts.

1) It is illegitimate or unwarranted to make an equivalence between Hamas and the Israeli leadership

This objection appears to be at the top of the list of the Biden administration’s concerns with Prosecutor’s Khan decision to simultaneously announce the request for warrants of arrest for three Hamas leaders and Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. Indeed, it was the only concern explicitly mentioned in President Joe Biden’s brief comment on May 20: “Let me be clear: Whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas.” The same objection also served as the opening sentence of Secretary of State Antony Blinken’s 20 May comments on the matter:

We reject the Prosecutor’s equivalence of Israel with Hamas. It is shameful. Hamas is a brutal terrorist organization that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans.

Several other countries commenting on the Prosecutor’s request similarly focus on what is interpreted as a “false impression of equivalence” between Hamas and the Israeli leadership (German Foreign Ministry); a “non-comprehensible” fact of mentioning “democratically elected representatives” of Israel in the same go as Hamas leaders (Austrian Chancellor); or an “appalling and completely unacceptable” proposal to issue arrest warrants for the “representatives of a democratically elected government together with the leaders of an Islamist terrorist organisation” (Czech Prime Minister)

From a legal point of view, there’s nothing much to say about this objection. It represents an essentially political understanding of the conflict and what stands comparison – and seemingly a perception among some that leaders who are democratically elected cannot commit international crimes. It is worth noting that there’s nothing new to the OTP simultaneously requesting warrants of arrest or summonses to appear for different sides to a conflict, as happened for example in the Kenyan investigation

2) The ICC has no jurisdiction over alleged crimes in Gaza, (a) because Israel is not an ICC State Party and/ or (b) because Palestine is not a State

Interestingly, jurisdictional objections are at this point in time less prominent compared to previous statements by some States concerning the Palestine investigation. In his 20 May statement, Secretary of State Antony Blinken simply notes in passing that “the United States has been clear since well before the current conflict that that ICC has no jurisdiction over this matter”. The brief statements made so far by European ICC State Parties do not touch on the matter.

However, jurisdictional objections to the Palestine investigation have been central in previous statements by several of the States who are now objecting to the arrest warrant requests. On the same day in March 2021 that then ICC Prosecutor Fatou Bensouda announced the opening of an investigation, the U.S. State Department issued a strongly worded statement opposing the decision:

The United States firmly opposes and is deeply disappointed by this decision. The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.

As for the UK, then-Prime Minister Boris Johnson stated his opposition on similar grounds in the context of the opening of the Palestine investigation:

We oppose the ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the [Rome Statute] and Palestine is not a sovereign state. This investigation gives the impression of being a partial and prejudicial attack on a friend and ally of the UK’s.

The conservative government seemingly continued to stand by this position – challenged by the Labour Party – under subsequent prime ministers in the years ahead. In late 2023, however, the UK took up what appears to be a new position. In a reply to Parliamentary questions on 14 November 2023 whether the UK government believes the ICC has jurisdiction over the conduct of all parties in Gaza, Foreign Office Minister, Andrew Mitchell, now suggested deference to the ICC Prosecutor:

It is not for ministers to seek to state where the ICC has jurisdiction; that is for the chief prosecutor. The chief prosecutor has not been silent on this matter, and I am sure he will continue to express his views.

Around the same time, the Foreign Office, asked if the position set out by former Prime Minister Boris Johnson was still government policy, simply stated: “As we have said from the outset, we continue to urge Israel to ensure it adheres to international humanitarian law and takes every possible precaution to protect civilians.” Other countries, such as Canada, appear to have also more recently backed away from previous jurisdictional objections.

The first aspect of the jurisdictional concern, namely that the ICC cannot exercise jurisdiction over Israeli nationals for potential crimes committed in Palestine because Israel is not an ICC State Party is a principled objection which has been voiced in particular by U.S. officials in other contexts, especially at times when U.S. citizens have been subject to ICC scrutiny. Leaving aside here the broader debate about ICC jurisdiction over nationals of non-State Parties, a key communication challenge for the States who subscribe to this criticism in the Palestine context is that many of the same States have enthusiastically welcomed the ICC’s exercise of jurisdiction over nationals of non-State Parties in other contexts. Most recently, the issuing of ICC arrest warrants for Russian President Vladimir Putin and other Russian officials were welcomed collectively by the West, with U.S. President Joe Biden calling the arrest warrants “justified”, notwithstanding that Russia is not a State Party to the ICC.

In a press briefing held on 20 May, U.S. State Department officials seemed to struggle to explain the apparent differences in how the U.S. views ICC investigations targeting nationals of non-State Parties committed in the territory of States that have accepted ICC jurisdiction, ultimately resorting to an argument that Russia and Israel are incomparable because the latter is a democracy and has, in the view of the U.S., been cooperating with the ICC Prosecutor.

The second aspect of the jurisdictional concern, namely that the ICC cannot exercise jurisdiction in the Palestine investigation because Palestine does not amount to a State faces the obvious challenge that Palestine already is a State Party to the ICC Statute – and has been so since 2015. Without entering the broader debate about recognition of Palestinian statehood it suffices here to say that for the purposes of the ICC, Palestine does amount to a State – and that is the simple reason that the ICC can exercise jurisdiction in this situation, as it has done since an investigation was opened in March 2021.

3) The principle of complementarity results that the OTP cannot proceed as it did, at least at this point in time

Concerns about the OTP’s understanding and application of the complementarity principle governing the ICC Statute are key to some States’ reservations about the arrest warrant request. Germany, for example, has indicated that it believes the principle of complementarity should be in play when the pre-trial chamber judges decide on the Prosecutor’s request (though it is worth noting that a spokesperson for German Chancellor Olaf Scholz later clarified that Germany would execute any arrest warrants that may be issued including against Israeli leaders). Secretary of State Antony Blinken’s 20 May remarks offer some detail on the nature of the objection:

The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed. In other situations, the Prosecutor deferred to national investigations and worked with states to allow them time to investigate. The Prosecutor did not afford the same opportunity to Israel, which has ongoing investigations into allegations against its personnel.

It is, of course, true that the OTP has regularly paused or stepped back from proceeding with specific action because, in its view, domestic investigations or proceedings could render potential cases inadmissible, as happened, for example, in the (arguably not so convincing decision) to refrain from launching a full investigation in the Iraq/UK preliminary examination.

However, there are several problems with critiquing the Prosecutor’s approach to the Palestine investigation on this basis. At the broadest level, the Prosecutor can hardly be said to have launched some form of surprise attack against Israel. Israeli leaders have continuously been warned by Prosecutor Khan since the start of the Gaza War that if they don’t start complying with the law, “they shouldn’t complain later” and the Prosecutor has encouraged Israel’s military justice system to ensure compliance with international humanitarian law.

More concretely, reference to deferring to domestic investigations in Israel at this point in time is problematic both from a factual and legal point of view. Whatever the exact scope may be of ongoing criminal investigations in Israel into potential crimes by Israel’s military in the Gaza War, it seems clear that such investigations cover only specific incidents by specific soldiers or military units. To be clear, there are absolutely no suggestions that Israeli authorities are investigating Netanyahu and Gallant for crimes in Gaza – or any other leadership members, for that matter.

And that’s the key point from a complementarity perspective at this point in time. At the so-called ‘case stage’ where specific persons have been identified by the OTP as potentially responsible for crimes, the only way an admissibility argument can be made on grounds of complementarity is if a State with jurisdiction can prove that it is investigating the same persons for substantially the same criminal conduct subject to ICC proceedings (and Israel will, of course, have the chance to prove it, if it believes this is the case). Before then, at the “situation stage”, where no specific persons have in theory yet been identified by the OTP as potentially responsible for the crimes examined, the standard developed by the ICC concerns whether domestic authorities are investigating the same overall conduct which is being investigated by the ICC.

To argue that the OTP should not have proceeded as quickly as it did (and it really wasn’t that quick) to proceed to apply for arrest warrants, in order to give Israeli authorities more time to investigate themselves therefore neglects that there are no indications that domestic investigations cover potentially criminal conduct by the Israeli leadership in the context of the Gaza War. Nor are domestic investigations reported to cover all of the “same overall conduct” giving rise to the arrest warrant requests, including the conduct associated with alleged starvation of civilians and persecution. At a more general level, the complementarity critique set forth does not reflect that Israel doesn’t exactly have the most solid track-record prosecuting crimes by its military.

4) The process surrounding the OTP’s arrest warrant requests is flawed

This objection, raised mainly by the U.S. so far, connects to the above objection about the ICC’s complementarity regime, but there’s seemingly more to it than that. Secretary of State Antony Blinken’s remarked on 20 May: 

There are also deeply troubling process questions. Despite not being a member of the court, Israel was prepared to cooperate with the Prosecutor. In fact, the Prosecutor himself was scheduled to visit Israel as early as next week to discuss the investigation and hear from the Israeli Government. The Prosecutor’s staff was supposed to land in Israel today to coordinate the visit. Israel was informed that they did not board their flight around the same time that the Prosecutor went on cable television to announce the charges. These and other circumstances call into question the legitimacy and credibility of this investigation.

These points were further elaborated in a U.S. State Department press briefing on 20 May, with the spokesperson seemingly suggesting this is a primary concern of the U.S.:

Now, look, if [Prosecutor Khan] had made that trip and been stiff-armed, that’d be a different circumstance perhaps […] I have a fundamental hard time arguing why it was he had to bring these warrants today before he completed that trip. Why not go and see if they’re cooperating and make the assessment afterwards? That’s not what happened.

Whether or not an OTP visit to Israel was planned and potentially cancelled around the same time as announcing the arrest warrant requests is obviously irrelevant from a legal perspective. Whatever the facts are about a planned visit, it is also hard to see how a potential cancellation or postponement of a specific visit has any bearing on the legitimacy and credibility of the Palestine investigation or the Prosecutor’s decision to apply for arrest warrants, especially taking into account what is discussed about concerning complementarity.  

5) Requesting warrants of arrest in the Palestine investigation at this point in time is not helpful because it undermines the prospects for (a) achieving a ceasefire, (b) getting the hostages held by Hamas released, and/ or (c) getting humanitarian aid into Gaza.

Secretary of State Antony Blinken stated that the “decision does nothing to help, and could jeopardize, ongoing efforts to reach a ceasefire agreement that would get hostages out and surge humanitarian assistance in, which are the goals the United States continues to pursue relentlessly”. This objection is also at the core of the messaging coming from the UK so far: UK Prime Minister Rishi Sunak, through his spokesperson, objected to the ICC Prosecutor’s request, simply noting: “This action is not helpful in relation to reaching a pause in the fighting, getting hostages out or getting humanitarian aid in” (a point resembling how the UK explained its opposition to the ICJ case brought by South Africa against Israel). However, a lasting ceasefire, getting the hostages released, and getting sufficient humanitarian aid into Gaza are objectives that have not been achieved for the last 8 months. Whether or not attacks will be scaled up – or Israel will take some form of retaliatory action as a consequence of the Prosecutor’s move, as it has previously threatened – remains to be seen. If so, that would be testimony to the need to further enforce accountability.

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

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Nicolas Boeglin says

May 27, 2024

Dear Professor Obel Hansen

Thank you very much for this article.

I wonder why your article focuses only on the official positions against the ICC prosecutor's statement, and does not refer to the many very positive official reactions such as, among many others, those from

Chile:

https://www.minrel.gob.cl/noticias-anteriores/comunicado-de-prensa-sobre-decision-del-fiscal-de-la-corte-penal

Belgium:

https://x.com/hadjalahbib/status/1792527999784361999

South Africa:

https://www.thepresidency.gov.za/south-africa-welcomes-icc-announcement-application-arrest-warrants-situation-state-palestine

It should be noted that since February 5, 2021, a Pre-Trial Chamber of the ICC has clearly stated in its conclusions (p. 60) that:

FOR THESE REASONS, THE CHAMBER HEREBY

FINDS that Palestine is a State Party to the Statute;

FINDS, by majority, (...), that, as a consequence, Palestine qualifies as ‘[t]he State on the territory of which the conduct in question occurred’
for the purposes of article 12(2)(a) of the Statute; and

FINDS, by majority, (...), that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem".

Source: https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_01165.PDF

In my opinion, many of those who officially declare as States that “the ICC has no jurisdiction over the war crimes committed in Gaza” seem simply to be unaware of the conclusions of this decision adopted in 2021 by this Pre Trial ICC Chamber. As some of them are States Parties to the Rome Statute, their official positions read in this month of May 2024 raise a number of questions. I would be delighted to have your opinion on this particular point.

Yours sincerely

Nicolas Boeglin

Thomas Obel Hansen says

May 27, 2024

Nicholas, thanks very much for your comment - I agree that it is encouraging to see that many States are standing up in favour of the ICC pursuing accountability for crimes in Gaza. What I wanted to do with this particular post is mainly to show and critically engage the specific objections raised by some States to the OTP proceeding to apply for AWs; I am sure you can see the value of such analysis from what you are writing.

Nicolas Boeglin says

May 28, 2024

Dear professor Obel Hansen

Many thanks for your very kind message.

May I add to my previous comment this article published recently in Israel, that gives and idea of the surveillance on ICC personnel (and computers...) in The Hague by intelligence services of Israel:

https://www.972mag.com/icc-israel-surveillance-investigation/

A complementary investigation of this kind could maybe show other interesting things, involving not only Israel as such, but other States.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

May 31, 2024

Dear Professor Obel Hansen

Allow me to add to my previuos comment this old reference from 2012 that I found, concerning the UK's position on the ICC and Palestine:

It's November 2012, a few days before a decisive vote at the UNGA on Palestine's status at the UN:

“The U.K. suggested that it might vote "yes" if the Palestinian Authority offered assurances that it wouldn't pursue charges in the International Criminal Court, but apparently came away unsatisfied".

Source : https://washingtonpost.com/news/worldviews/wp/2012/11/29/map-how-europe-voted-on-palestine-at-the-u-n-in-2011-and-now/

Normally, when the source is the Washington Post, it means it's a quite good source. If, by chance, any British colleagues of EJIL-Talk reading this commentary have contacts within the British diplomatic apparatus, it should be easy to confirm who within it made this (admittedly unacceptable) proposal to Palestinian diplomats in November 2012.

Yours sincerely

Nicolas Boeglin