Hard cases make bad law. The request for the International Criminal Court to issue arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant is a very hard case that will make very bad law that would set a precedent that could easily undermine or destroy the Court.
The new UK government must continue the work of its predecessor by submitting written observations as amicus curiae objecting to the application for arrest warrants on three main grounds. First, the Prosecutor, Karim Khan QC, has violated the Court’s founding principle of complementarity. Second, the Court does not have jurisdiction over the alleged crimes. And third, the ways in which the application was made to the judges may undermine, or be perceived as undermining, the Court’s independence and impartiality.
The ICC is authorized only to address the four gravest categories of crimes: war crimes, crimes against humanity, genocide, and aggression. Considered to be the court of last resort, the ICC steps in only when national courts are unwilling or unable to prosecute alleged perpetrators. This is the principle of complementarity. The Court was established to complement rather than take over from national courts. Arrest warrants may only be issued where national courts do not exist, or are not independent, or fail to prosecute alleged perpetrators. This clearly is not the case in terms of Israel, a democracy with an independent and impartial judiciary. It has not shied away from prosecuting senior political figures including Netanyahu. And Israel has told the International Court of Justice that it has opened some 70 cases for investigation.
But even if Israel is viewed as failing to prosecute alleged crimes, the ICC does not have jurisdiction to take over. Israel is not party to the Rome Statute, so the Court does not have jurisdiction over its citizens. Khan claims that Palestine is a member but does not address the fundamental point that the Rome Statute makes clear that only states can become parties. Palestine is not a state.
Some countries have provided political recognition of Palestine as a state, but they do not claim that this changes its legal or factual status. The United Nations has passed many resolutions giving Palestine ever-increasing rights but, crucially, as a non-state observer. This is because only states can be full UN members. And the UK has repeatedly emphasised that Palestine does not meet the criteria for statehood. Commitment to the two-state solution is very different to claiming that the State of Palestine already exists or that it was able to become party to the Rome Statute in 2015. Pretending otherwise goes against the Court’s constituent instrument.
Article 12(2) of the Rome Statute allows state parties to delegate to the Court their authority over crimes committed in their territory. Even if the Court claims that Palestine is a party, it still would not have jurisdiction for alleged crimes committed in Gaza because Palestine has no authority over them. The Oslo Accords make clear that no Palestinian entity has authority over acts committed by Israeli nationals. The Oslo Accords are vital to relations between Israel and Palestine, and to the powers of the Palestinian Authority (or other Palestinian entities) in Gaza and the West Bank. The Accords have conditioned almost 30 years of contact and interactions between Israel and the Palestinians. Both sides continue to affirm that those bilateral agreements are the legal framework governing their relations and conduct. The ICC does not have the power to disregard or change those agreements.
The last issue is the way in which Khan applied for the arrest warrants. Announcing the application publicly means that the judges may be placed, or perceived as being placed, under pressure or influence from external actors. The highly unusual step that Khan took of hand-selecting a panel of experts to prepare a report, which was then published to support his application, also raises questions about pressure, or perception of pressure. Justice must not only be done but must also be seen to be done.
There are some who claim that if the arrest warrants are not issued there will be impunity for alleged crimes. This is not true. There are other accountability mechanisms including Israel’s national courts, national courts in other states where jurisdiction can be established, UN-created ad hoc investigative mechanisms or criminal tribunal, or human rights bodies.
This is a very hard case because there are many who want to see Netanyahu and Hamas leaders held to account, and who are frustrated by the international community’s failures to end the war and secure the hostages’ release. It could make very bad law if arrest warrants are issued in contravention of the Court’s constituent instrument and powers. The consequences will be far-reaching beyond the legitimacy of accountability over alleged crimes in Gaza but also Court’s own legitimacy, without which the ICC could itself fail through states refusing to comply with it or withdrawing altogether.
Rosa Freedman is Professor of Law Conflict and Global Development at the University of Reading.