Justice Delayed, Not Yet Denied: An Update on the ICC Arrest Warrants for Benjamin Netanyahu and Yoav Gallant

JUSTICE, 2 Sep 2024

David Kattenburg | Mondoweiss - TRANSCEND Media Service

Karim Khan, the chief prosecutor of the International Criminal Court (center), announces he is seeking arrest warrants from the court’s judges for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, along with Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh, 20 May 2024. (ICC)

ICC Chief Prosecutor Karim Khan’s request for arrest warrants against Benjamin Netanyahu and Yoav Gallant has been mired in attempts to shield Israel from accountability since May, but this soon could change.

27 Aug 2024 – It was a landmark ruling by the world’s supreme judicial body.

Israel’s 57-year occupation and colonial settlement of the Palestinian territories are unlawful, it must withdraw from the territories “as rapidly as possible,” and UN member states must hold Israel to account for its wrongful acts, the International Court of Justice declared last July 19, in The Hague, in a non-binding 12-3 vote.

Sometime this fall, across town, a 3-judge panel of a totally different court – the International Criminal Court (independent from the UN) – will issue one of two far more consequential rulings.

In response to Chief Prosecutor Karim Khan’s May 20 application for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three Hamas leaders (Yahiya Sinwar, Ismail Haniyeh, who Israel killed in an assassination in Iran on July 31, and Mohammed Deif, who Israel claims to have killed but which Hamas denies), ICC Pre-Trial Chamber I (PTC) may approve Khan’s application, in which case arrest warrants would likely be issued shortly thereafter.

Alternatively, the PTC may tell Khan that Israel should have an opportunity to prove its own legal system is capable of holding Israelis responsible for the war crimes and crimes against humanity they’ve allegedly committed, a process that could drag on for months.

The first of these two scenarios was what ICC watchers had anticipated, in the weeks following Khan’s arrest warrant application.

Then, the process went sideways.

On June 10, Rishi Sunak’s UK government asked the PTC for leave to submit an amicus brief regarding ICC “jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise [it] pursuant to the Oslo Accords.”

The Oslo gambit. No more powerful countermeasure against the rule of law in Palestine.

‘Peace’, the UK and Israel’s other allies argue, can only be secured through face-to-face negotiation between the ‘parties’, Israel’s lawyers at the door, ensuring Israeli terms are met; blocking Palestinian end-runs at the UN, or in halls of justice.

Justice would just muck things up.

In late June, the PTC granted Britain’s request, ruling that other parties could file amicus briefs too.

Israel and Palestine’s respective advocates leaped at the offer. Not knowing the thrust of everyone else’s briefs, the Pandora’s box of legal and political arguments would be opened wide, rendering what should have been a swift, straightforward procedure anything but.

In the end, Keir Starmer now at the helm, the British government opted not to submit observations to the court, but Sunak’s move had paid off.

The three PTC judges—Romanian, Beninese, and French—are now sifting through a pile of 10-page briefs. Roughly half of them call on the Chamber to approve Khan’s application for arrest warrants, while the other half call for the application to be denied or delayed.

The arguments against a warrant

Khan’s arrest warrant application should be dismissed, Israel’s lawyers and advocates argue.

Israel is not a State Party to the Rome Statute, they claim, so its leaders are exempt from prosecution.

Furthermore, although Palestine is a State Party to the Rome Statute, the U.S. State Department and South Carolina Senator Lindsey Graham told the PTC in two separate amicus briefs, it’s not a “real” state under public international law.

Cutting to the Oslo Accords, they clearly stipulated that Palestinians would only exercise criminal jurisdiction over Palestinians, U.S. State and Lindsey Graham argue. What Palestine doesn’t possess – jurisdiction over Israelis – it cannot ‘delegate’ to the ICC.

ICC arrest warrants against Israeli leaders wouldn’t just violate Oslo’s fine print, others told the PTC, it would be indecent and prejudicial.

Arrest warrants would create “a misguided, shocking moral equivalence between Israel and Hamas leaders,” Canada’s Centre for Israel & Jewish Affairs argued in its brief to the Chamber.

According to UK Lawyers for Israel, “the resulting restriction on the ability of many Israelis to travel to most countries without fear of arrest could even have significant adverse impacts on the world economy, given the disproportionate contribution made by Israelis to technological innovation.”

Among such innovations, a “High Level Military Group” of retired NATO officers and officials advised the PTC, a digital mapping system called the “Civilian Harm Mitigation Cell.”

“How such innovative efforts align with an allegation of the defendants in this matter directing the IDF to intentionally attack civilians is perplexing,” the Military Group told the Tribunal.

The PTC’s judges will almost certainly dismiss arguments like this.

Potentially more convincing, the Court’s complementarity principle: accused parties have the right to investigate alleged crimes themselves prior to the issuance of arrest warrants, and prosecutor Khan failed to let Israel do so.

‘Sterile’ arguments

The PTC has heard these arguments before, from many of the same suspects, and is unlikely to dive down the rabbit hole of shaky legal and irrelevant political arguments, informed ICC watchers told Mondoweiss.

In February 2021, the PTC ruled that Palestine was indeed a State Party “for the purposes of the Rome Statute,” that alleged crimes occurred on Palestinian territory, and that ICC jurisdiction therefore encompassed the West Bank, East Jerusalem, and Gaza.

The PTC also opined on Oslo. Whatever constraints the Accords placed on Palestinian criminal jurisdiction, it ruled in February 2021, Oslo was not “pertinent” to ICC jurisdiction – although Oslo constraints could be raised at a later stage of Court proceedings.

Oslo is a “red herring,” Palestine’s advocates say.

“That the UK abandoned [the Oslo] argument speaks volumes,” Canadian legal scholar William Schabas told Mondoweiss, in emailed comments.

“The claim that Israel somehow conferred a limited criminal jurisdiction upon the State of Palestine [in the Oslo Accords] is a colonialist vision,” Schabas told the PTC in his amicus brief, suggesting in the final lines that genocide and apartheid be added to Prosecutor Khan’s charges.

More to the point, Schabas and others told the PTC: whatever jurisdictional constraints Oslo placed on Palestine thirty years ago are irrelevant because State Parties don’t ‘delegate’ jurisdiction to the Court – they accept the court’s jurisdiction, at which point the Prosecutor is free to investigate ‘referred’ situations, and to apply to the PTC for arrest warrants if reasonable grounds are established.

Bottom line: The ICC acts on behalf of the international community as whole, Palestine’s advocates told the PTC, not on behalf of State Parties – who may only exercise limited criminal jurisdiction within their territories, or no jurisdiction at all, possibly due to ‘special agreements’ like Oslo.

No higher authority on this matter than Norway.

“There is … nothing in the [Rome] Statute to suggest that agreements such as the Oslo Accords are of any relevance to the determination of the Court’s jurisdiction,” Oslo-based Norwegian Foreign Affairs official Monica Furnes told the PTC.

“Palestine cannot be deemed, through its adherence to the Oslo Accords, to have abandoned any aspects of its sovereignty, including any of its powers of jurisdiction, such that it should be unable to confer this jurisdiction on the Court,” Furnes wrote in her brief to the Chamber.

“[In] any event,” Furnes advised the PTC, “any limitations in the Oslo Accords concern only Palestine’s enforcement jurisdiction, not its prescriptive jurisdiction, which it has remained free to confer on the Court.”

Prescriptive jurisdiction is the right to ‘make law’ and accede to international legal instruments. Palestine possesses this in spades. In the wake of its successful bid for observer state status at the UN in November 2012, Palestine acceded to a host of international legal instruments and treaties, including the Geneva Conventions and their three Additional Protocols. In January 2015, it acceded to the Rome Statute of the ICC, provoking howls of outrage from Israel and the U.S.

Whatever jurisdictional constraints Oslo’s Legal Protocol does place on Palestine, Norway, and others told the PTC, narrow legalisms miss the forest for the trees.

The International Court of Justice confirmed this point in its July 19 Advisory Opinion, ruling that “Israel may not rely on the Oslo Accords to exercise its jurisdiction in the Occupied Palestinian Territory in a manner that is at variance with its obligations under the law of occupation.”

Driving the nail into the Oslo coffin, the ICJ also cited Article 47 of the Fourth Geneva Convention: protected people “shall not be deprived” of the benefits of the Convention “by any agreement concluded between the authorities of the occupied territories and the Occupying Power.”

As for ‘complementarity’ arguments, pure rubbish, says William Schabas.

“[Some] contend Israel shouldn’t be investigated because they have a state of the art justice system,” Schabas told Mondoweiss in emailed comments.

“Seriously,” Schabas asks? “With thousands of Palestinians held without trial? This is a country that defies orders from the International Court of Justice, yet we are supposed to be impressed by its devotion to the rule of law?”

“They claim Israel should have been warned in a notice by the Prosecutor that they were being investigated,” Schabas wrote to Mondoweiss. “Isn’t this absurd? As if they don’t know. Their Prime Minister has denounced the investigation over and over again. Now, apparently, he’s entitled to a notification that there will be an investigation.”

That Israel should have been given a chance to address Khan’s expanded charges (relative to his predecessor, Fatou Bensouda) is a “sterile argument,” ICC observer Sergey Vasiliev told Mondoweiss in an email note.

“[Netanyahu] knew what was coming, was getting really worried about it, and tried as hard as he could to prevent it by working behind the scenes with the U.S. and others,” Vasiliev told Mondoweiss. “He failed and applications were filed.”

Furthermore, Vasiliev told Mondoweiss, well documented Israeli attempts to thwart the ICC, including the crude intimidation of Fatou Bensouda, provide Khan more than enough ammunition to sink the ‘complementarity’ argument in his submission to the Chamber.

Vasiliev predicts a PTC ruling on arrest warrants by December. William Schabas thinks it’ll happen much sooner.

If the 3-judge panel approves Khan’s arrest warrant application, the British barrister will be in a good position to up the ante.

According to a “Panel of Experts” convened by Prosecutor Khan – one of them a former ICC judge, another the former President of the International Criminal Tribunal for the Former Yugoslavia – additional crimes are “under investigation and expected to lead to additional applications [for arrest warrants] in the future.”

Khan’s most likely added charges against Netanyahu and Gallant: Israel’s settlement enterprise — a war crime under the Rome Statute – and the crime against humanity of genocide.

Khan responds

In his ‘consolidated response’ to the pile of amicus briefs opposing PTC approval of arrest warrants, Khan suggests that genocide charges are on his mind.

“Israel has deprived the Palestinian population of objects indispensable to their survival,” Khan told the PTC in his 49-page brief, submitted to the Chamber this past Friday.

Arguments that ICC prosecution of Israeli leaders is constrained by Oslo — that the Accords trump the Rome Statute — should be summarily dismissed, Khan told the PTC.

His comments about the complementarity principle – that Israel should be given the chance to prosecute its own top leaders before arrest warrants are issued — were acerbic.

“There is no information indicating that [Benjamin Netanyahu and Yoav Gallant] are being criminally investigated or prosecuted, and indeed the core allegations against them have simply been rejected by Israeli authorities,” Khan told the Chamber.

Meanwhile, he added, “The situation in the oPt, including Gaza, is catastrophic, owing in large part to the ongoing criminality described in the [arrest warrant] Applications.”

Citing a key provision of the Rome Statute, Khan advised the 3-judge panel that “the arrest of the persons named in the Applications appears necessary” — “to prevent [them] from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court.”

As for additional Israeli persons to arrest, applications against Bezalel Smotrich and Itamar Ben-Gvir may well sit in Karim Khan’s top drawer, ready to be submitted to the PTC once warrants against Netanyahu and Gallant have gone out the door.

Unlike the ICJ’s Advisory Opinion on the illegality of Israel’s occupation (for UN member states to accept or reject as they please), arrest warrants against Israel’s top leaders by the world’s preeminent criminal court will be impossible for Israel’s allies to ignore.

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David Kattenburg is a university science instructor and radio/web journalist based in Breda, North Brabant, the Netherlands.

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