Legal Consequences of Arrest Warrants Submitted by the Prosecutor General of the International Criminal Court Issued against Israeli Officials
Publication Year: 
Language: 
Arabic
English
Number of Pages: 
14

In May, 2024, the Prosecutor General of the ICC, Karim Khan, announced that he had submitted a request for arrest warrants to be issued by the Pre-trial Division of the ICC against Israeli and Palestinian officials from the HAMAS movement.[1] These requests are considered part of the legal moves taking place at international forums in the wake of the Israeli assault on Gaza since October 7, 2023. Reactions to Khan’s request were varied. Some welcomed it as a significant precedent for prosecuting Israeli officials complicit in crimes against the Palestinians of the Gaza strip, while others considered it prejudicial and unresponsive to the demands of justice, quite apart from the fact that the charges against Israeli officials who have committed and still commit genocidal acts are insufficient and incomplete. This accords with the decision of the International Court of Justice issued last January which admitted that reasonable grounds existed for considering what Israel was doing in Gaza as acts of genocide, in response to the case raised by South Africa against Israel in that regard.[2]

Israel expressed its profound sense of shock at the Prosecutor General’s statement directed against its prominent officials, and Israeli Prime Minister Netanyahu considered it a form of antisemitism, declaring at the same time his determination to “carry on the war.”[3] Meanwhile, the US, as expressed by both President Biden and Secretary Blinken, rejected the request for arrest warrants, which in their view equated prominent Israeli officials with Palestinian “terrorists.”[4] This position was also adopted by states closely allied to Israel such as the UK, Hungary, the Czech Republic, and Austria. On the other hand, many states supported the request for arrest warrants including Spain, Slovenia, Oman and Belgium.[5] The political stance of some of these states developed to the point where they declared that they were joining South Africa in the case it was raising against Israel, as outlined above, and these included Spain and Belgium.[6]

At another level of this judicial activity, many jurists throughout the world are investigating the best application of the principle of universal jurisdiction as applied to bringing to trial those accused of committing heinous crimes,[7] by pursuing Israeli officials complicit in crimes against Palestinians. In fact, criminal charges were brought against Israeli President Herzog by Swiss jurists while he took part in the World Economic Forum at Davos, Switzerland, in January, 2024, charging him with crimes against humanity.[8] Likewise, jurists in Germany[9], Australia[10] and the Netherlands[11] raised cases against their own governments, alleging complicity in the commission of heinous crimes committed in Gaza, especially the crime of genocide, given that these governments were exporting weapons to Israel.

This intensive judicial activity, which has assumed diverse shapes and courses, and is escalating around the world, is directed towards a single goal: to ensure that, out of fairness to the Palestinian victims and to justice, criminals do not escape punishment. This in turn motivates and propels other moves on the level of inter-state relations. Some states have severed diplomatic ties with Israel such as Colombia, Bolivia, South Africa and Bahrain[12], while the municipal councils of certain cities such as Barcelona[13] and Copenhagen[14], severed or suspended their ties to Israeli cities and institutions. In the US state of Michigan, the municipal council of the city of Hamtramck adopted a resolution in favor of BDS against Israel for its war on Gaza, a significant development, and a precedent, at the level of the USA.[15]

Pertaining to this issue is the fact that Spain, Ireland, Norway and Slovenia have extended official recognition to the state of Palestine[16], and this was followed by a Chinese statement expressing its support for recognizing an independent Palestinian state and for Palestine’s request to become a full member of the UN.[17] Concurrently, cities around the world such as London, Paris and New York witnessed massive demonstrations whose voice could still be heard at the time of the present writing.[18] In turn, these were aroused and motivated by student movements at prominent academic institutions calling for an end to the assault on Gaza and demanding that their universities should divest from Israel. The torch was lit at Columbia University and was carried onwards by other student movements at other universities such as Harvard and George Washington in the US, and by celebrated universities elsewhere like Oxford in the UK and Sciences Po in France.[19]

In light of these ongoing development and concurrently with them, there came the announcement of the Prosecutor General of the ICC, requesting that arrest warrants be issued by the Pre-trial Division of the court. In case the ICC judges are convinced of the validity of the charges, this would have many consequences which the present policy paper seeks to examine. But first, one must investigate the state of Palestine as viewed by the office of the Prosecutor General, to be followed by a review of the most significant portions of the said requests.

The ICC was established by the Rome Statute of the International Criminal Court in 1998, and it began sittings in July, 2002, as a permanent and independent judicial body located in the Hague, the Netherlands, to look into the most serious crimes that threaten the international community such as the crimes of genocide, war crimes, crimes against humanity and crimes of aggression, as outlined in Article 5 of the Rome Statute. The court exercises its jurisdiction upon individuals charged with the above crimes, its jurisdiction being considered complementary to, but not an alternative to, national criminal jurisdictions, as per Article 1 of the above Statute. The Court is composed of the following principal organs: The Presidency; An Appeals Division, a Trial Division, and a Pre-Trial Division; The Office of the Prosecutor, and the Court Registry.[20] The Office of the Prosecutor works independently from other court organs, is responsible for receiving cases, either from signatory states of the Rome Statute or from the UN Security Council, to investigate where one or more crimes have been committed that fall under the court’s jurisdiction, and to receive and analyze credible evidence of such crimes and study them prior to referring them to trial.[21]

On January 1, 2015, the government of the State of Palestine issued a declaration accepting retroactively the jurisdiction of the ICC as regards crimes committed since June 13, 2014, in occupied Palestinian territories, including East Jerusalem. On January 2, 2015, Palestine deposited the text of its application to join the court with the UN Secretary General, which became operative as regards Palestine on April 1, 2015, when the Court Registry accepted its application. Thereupon, the then Prosecutor General, Fatou Bensouda, launched a preliminary study of the situation in Palestine to assess in a prefatory manner the evidence received by her office and determine whether that evidence falls within the court’s jurisdiction.[22]

A few years later, i.e. in 2018, the State of Palestine submitted a referral to the office of the Prosecutor General regarding the situation in Palestine to investigate the crime of Israeli settlements in occupied Palestinian territories. On December 20, 2019, the Prosecutor General, following a thorough and independent investigation of the credible evidence available to her office, concluded her preliminary study as follows: “All the legal criteria cited in the Rome Statute for opening an investigation have been satisfied.”[23] The Prosecutor General added that war crimes are being, and have been committed on the West Bank, and including East Jerusalem and the Gaza Strip.[24]

On January 22, 2020, the Prosecutor General submitted a request to the Pre-Trial Division asking for the issuance of a decision determining the regional jurisdiction of the court, in light of the legal and factual issues related to that particular case.[25] On February 5, 2021, that Division decided by majority vote that the regional jurisdiction of the court in the case of Palestine covers territories occupied by Israel since 1967, namely, the Gaza Strip and the West Bank, including East Jerusalem. This decision followed an examination of the request submitted by the Prosecutor General and of the memoranda submitted by the victims and by various organizations and researchers.[26] On March 3, 2021, the Prosecutor General affirmed to the ICC that her office had launched an investigation of the situation in Palestine to include crimes falling within the court’s jurisdiction which are claimed to have been committed since June 13, 2014.[27]

This relatively slow progress as regards the situation in the state of Palestine was brought to a complete standstill when Karim Khan replaced Fatou Bensouda as prosecutor in June 2021. Khan declared that his priority would be to investigate cases referred to his office by the UN Security Council.[28] That standstill reached its widest extent after the events of October 7, 2023, where there was hardly any reaction to the crimes and egregious violations committed by Israel against the Palestinians[29], a situation that persisted right until the day when the Prosecutor submitted a request for arrest warrants---the subject of this present paper---in May, 2024. In what follows, the paper will examine some of the aspects of that request.

Assessing the contents of the request for arrest warrants

In a statement issued on May 20, 2024, the Prosecutor General, Karim Khan, declared that he had submitted a request to the first Pre-trial Division to issue arrest warrants against Isma`il Haniyya, head of HAMAS’s political bureau, Yahya al-Sinwar, head of HAMAS’s political bureau in Gaza, and Muhammad al-Masri, known as Muhammad Dayf, commander of al-Qassam brigades, the military wing of the HAMAS movement. The arrest warrants also included Israeli Prime Minister Netanyahu and Defense Minister Gallant.[30] These requests were submitted in accordance with the provisions of the Rome Statute which set out the mechanisms for issuing arrest warrants against those suspected of committing crimes that fall within the court’s jurisdiction. The first Pre-trial Division is delegated with assessing such requests prior to deciding whether to support or reject them as per Article 58 of the Rome Statute.

In assessing the contents of the request submitted for issuance of the above arrest warrants, we find that they target Palestinian political and military figure whereas Israeli military figures are excluded. The charge sheets submitted against the two sides constitute a significant field of study whereby a comparison may be drawn between the charges against each side as regards their number and substance. Where number is concerned, one notes that eight charges were directed against the Palestinians (five crimes against humanity: genocide, murder, rape and other forms of sexual violence, torture, and other inhuman acts, plus three war crimes: hostage taking, cruel treatment and violence against individuals) whereas seven charges were directed against the Israelis (four war crimes: famine caused to civilians as an instrument of war, deliberate murder, deliberate attacks on civilians, and deliberate infliction of intense suffering or harm to body and health, plus three crimes against humanity: genocide and or deliberate murder, oppression and other inhuman acts).[31]

As for substance, the charge sheet directed at accused Israelis did not include systematic violations committed against Palestinian prisoners in the West Bank and hostages abducted from Gaza, among them inmates of the Israeli military base at Sde Teiman where Palestinian prisoners are subjected to diverse forms of torture and inhuman treatment which are designed to demean human dignity. This has been widely reported by many judicial organizations including Amnesty International and the Euro-Med Human Rights Monitor[32], together with press and TV reports issued by such organs as Haaretz and CNN.[33] In tandem, one notes that charges of abduction are directed against accused Palestinians, in addition to the repeated assertions made in Khan’s statement regarding the need to release the Israeli hostages in Gaza (the “abductees” as referred to in the statement) with details of the difficult and inhuman conditions of their captivity, necessitating the charge of committing a war crime in light of their “abduction.”

On the other hand, charges of sexual violence and rape were directed against Palestinians whereas these charges were completely absent from the charges directed at the Israelis, and this despite the fact that a report issued by international and independent female researchers on February 19, 2024, cited strong evidence pointing to at least two cases of rape of female Palestinian prisoners while others were threatened with rape and sexual violence. Furthermore, female prisoners in Israeli prisons and detention centers have been subjected to diverse kinds of sexual assaults such as stripping them and body searching them by officers of the Israeli army of occupation, together with demeaning treatment aimed at debasing human dignity suffered by them in these prisons, including being held in cages in cold weather, and photos of them circulated on the internet.[34] Additionally, the charge sheet against Israeli officials did not include the crimes of forcible eviction of Palestinians from the Gaza Strip or the forcible disappearance of individuals as crimes against humanity, nor did it conclude the destruction of civilian properties, assaults on religious, archeological, and educational sites, the use of weapons of mass destruction, and plunder as forms of war crimes. This list can of course be extended. Then again, the Prosecutor General ignored all references to Israel’s violations of its obligations as an occupying power as defined by international humanitarian law applicable to Palestinian territories occupied since 1967 (the West Bank, including East Jerusalem and the Gaza Strip), which law the International Court of Justice had declared to be applicable in its verdict on the racist wall of separation.[35]

Likewise, the charge sheet did not explicitly allude to the crime of genocide which falls within the court’s jurisdiction at a time when repeated decisions are issued by the International Court of Justice affirming the need for Israel to adopt further cautionary measures in the case brought by South Africa, where that Court held that reasonable grounds existed for believing that genocide was committed against the Palestinians,[36] in addition to international reports issued by independent international monitors also pointing to the fact that Israel was committing genocide in Gaza.[37]

Of note in this context is the fact that the ICC Prosecutor General has narrowed the scope and time scale of the charges against the Israeli officials by limiting the charge sheet to crimes committed only in the Gaza Strip and excluding other systematic crimes committed in other Palestinian territories, and this despite the fact that the regional jurisdiction in the investigation file in the Prosecutor General’s office comprises all crimes committed in Palestinian territories occupied since 1967, including East Jerusalem. The Prosecutor further limited the time frame to crimes committed only since October 7, 2023, despite the fact that the time frame of jurisdiction of his office and in the case presented by the state of Palestine extends to include crimes committed since June 13, 2014.

Yet despite the shortcomings in the charge sheet against Israeli officials, as set out in brief above, one cannot underestimate the significance of a request for the issuance of arrest warrants against the Israeli Prime and Defense ministers who form the head of the political pyramid of the occupying state. In case the Pre-trial Division of the court accepts that request, several political and legal consequences would ensue, to be discussed below.

Consequences and possible scenarios

In addition to the political reverberations produced by the request for arrest warrants to be issued against Israeli officials on both the Israeli and international levels, these requests can be considered an important measure of support for international legal demands aimed at achieving justice for the Palestinians and pursuing Israeli criminals. It could be argued that the political standpoint adopted by certain countries which either severed diplomatic ties with Israel or recently declared that they recognized the state of Palestine, derived their confidence and their bold decisions from the heritage of legal measures which had either supported the rights of the Palestinian people or demanded no impunity for criminals or else documented crimes as evidence to pursue perpetrators.

The requests submitted for arrest warrants have opened the door wide before several legal consequences and scenarios, the most significant being:

1
Author Bio: 

May Barakat: is a practicing attorney and holds an MA in international relations from Bir Zeit University in Palestine. She is also a legal researcher and author of several peer reviewed articles published in prominent international journals and pertaining to public international law and international humanitarian law.

Yasser Ammouri: is Associate Professor of public international law and holds a Ph.D. degree in public international law from the University of Granada, Spain. At present, he is vice-president for development and communication at Bir Zeit University and was formerly Dean of the College of Law and public administration at that university, a member of the independent Palestinian commission investigating was crimes in Gaza in 2014, and a member of the independent Palestinian commission investigating the Goldstone report of 2010.