In its zeal to condemn Israel in its war against Hamas, the International Criminal Court appears to have committed a number of errors.
By Prof. Raymond Wacks
On 25 August 2012 the tenacious and sagacious friend of Israel, Douglas Murray, published an article in The Spectator, questioning whether the International Criminal Court (ICC) served any useful purpose, and wondering whether the real issue was not ‘How can we bring these leaders to justice?’ but rather ‘How can we get these leaders off their people’s backs?’ He also doubted whether the conviction of malevolent dictators really acts as an effective deterrent to other evil leaders.
My response, published the following week, argued that deterrence was not the purpose of a judgment of the Court. Nothing, I suggested, would dissuade a monster from carrying out his iniquitous conduct. Instead, I wrote:
The principal objective of the ICC must therefore be simple retribution. Why create an offence if a transgression is met with impunity? Tyrants who commit crimes against humanity deserve punishment, not to deter others (even the gallows are unlikely to achieve that), but because they must suffer for their evil.
Murray contends that instead of prosecuting these ogres, innocent lives might be saved if, like Idi Amin, oppressors are given sanctuary by, say, Saudi Arabia. But this is cold comfort for their victims, or indeed anyone who yearns to see justice done. If the purpose is to eliminate a wicked leader, then his speedy dispatch – as with Caesar, Mussolini, and Gaddafi – would surely be a more efficient method. Even those domestic tribunals that ‘tried’ and executed Saddam Hussein and the Ceausescus, offer a more expeditious solution than a safe haven elsewhere.
I mention this exchange merely to demonstrate my support for the establishment of the ICC, and its role as a legitimate forum in which genocide and other heinous crimes may be judged and penalized.
THE ROME STATUTE
The ICC was established on 17 July 1998 under the Rome Statute, an international treaty, and came into force in July 2002. Some 120 States have signed up to the Court’s jurisdiction.
Its creation reflected the need for a permanent international tribunal to prosecute crimes allegedly committed in the pursuit of war. The Court of eighteen judges elected by member States claims that its main purpose is to help:
‘…end impunity for the perpetrators of the most serious crimes of concern to the international community.’
In this endeavour it has so far notched up 32 cases, issued 59 arrest warrants – the latest being for Binyamin Netanyahu, Yoav Gallant, and the presumed late, unlamented Hamas leader, Mohammed Deif, a major strategist of the 7 October atrocities who was accused of crimes against humanity, including murder, torture, sexual violence. and hostage-taking. (This is an unnoticed acknowledgement that the events of 7 October actually occurred, were committed by Hamas, and were not, as certain malevolent individuals and groups have maintained, concocted).
THE PROCESS
According to the ICC, the circumstances leading to its decision to issue the arrest warrants were as follows:
- On 1 January 2015, the State of Palestine lodged a declaration under Article 12(3) of the Rome Statute accepting jurisdiction of the Court since 13 June 2014.
- On 2 January 2015, the State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for the State of Palestine on 1 April 2015.
- On 22 May 2018, pursuant to Articles 13(a) and 14 of the Rome Statute, the State of Palestine referred to the Prosecutor the situation since 13 June 2014, with no end date.
- On 3 March 2021, the Prosecutor announced the opening of the investigation into the situation in the State of Palestine. This followed the Pre-Trial Chamber’s decision of 5 February 2021 that the Court could exercise its criminal jurisdiction in the situation and, by majority, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.
- On 17 November 2023, the Office of the Prosecutor received a further referral of the situation in the State of Palestine, from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, and on 18 January 2024, the Republic of Chile and the United Mexican State additionally submitted a referral to the Prosecutor with respect to the situation in the State of Palestine.
The Court found reasonable grounds to believe that Netanyahu and Gallant were criminally responsible for acts including murder, persecution, and starvation as a weapon of war as part of a ‘widespread and systematic attack against the civilian population of Gaza’.
On 26 September 2024, Israel challenged the Court’s jurisdiction over both the situation in Palestine and over Israeli nationals on the basis of Article 19(2) of the Statute. It also requested the Court to order the Prosecution to provide a new notification of the initiation of an investigation to its authorities under Article 18(1) of the Statute, and requested it to halt any proceedings before the Court, including the consideration of the applications for warrants of arrest for Netanyahu and Gallant, submitted by the Prosecution on 20 May 2024.
The ICC held, however, that the acceptance by Israel of the Court’s jurisdiction is not required, as the Court can exercise its jurisdiction on the basis of territorial jurisdiction of Palestine. In addition, pursuant to Article 19(1), States are not entitled to challenge the Court’s jurisdiction under Article 19(2) prior to the issuance of a warrant of arrest. It therefore decided that Israel’s challenge was premature.
FIVE FLAWS
There are, I believe, at least five important flaws in the Court’s decision to issue the arrest warrants.
First, the central question of the Court’s jurisdiction just mentioned, was challenged by Israel, but dismissed by the judges in a fairly cavalier fashion. Israel argued that Palestine lacked ‘the competences required under international law to be able to delegate territorial jurisdiction to the Court.’ It cited the Court’s decision in 2021 that issues of territorial jurisdiction may be raised by interested States based on Article 19 of the Statute. Israel claimed that it is a State from which acceptance of jurisdiction is required under Article 12 of the Statute – even if there is another State which has delegated jurisdiction to the Court for that same situation.
This, the judges held, was incorrect as a matter of law. ‘The acceptance by Israel of the Court’s jurisdiction is not required, as the Court can exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine’. In other words, when there is one jurisdictional basis pursuant to Article 12(2)(a) or (b), there is no need for an additional one.
But this is not an uncontentious point, and it is at least arguable that the Court may lack the authority to issue the warrants against Israeli nationals. An essential principle of public international law is that it is only by virtue of a state’s consent that it is bound by the jurisdiction of an international court. (Israel along with the United States, Russia, and China, has not acceded to the Court’s authority).
It is true, on the other hand, that the Rome Statute empowers the Security Council to refer crimes of atrocity committed in any country to the Court for investigation. For example, it referred Sudan to the Court in 2005 in relation to the humanitarian calamity in Darfur, and Libya in 2011. Neither have accepted the Court’s jurisdiction. But these cases may be distinguished from the present situation which involves the prosecution of individual nationals of a State that is not signed up to the Court.
Secondly, it is questionable whether food insecurity in a warzone is ineluctable proof of the commission of a war crime. In fact, this would be the first time the Court has sought to prosecute such circumstances. Moreover, there is substantial evidence to indicate that the delivery of aid to Gaza has been hampered by the failures of aid agencies, and the looting by Gazans themselves, including, in all probability, armed members of Hamas.
Thirdly, the ICC’s jurisdiction is based on the concept of ‘complementarity’: the principle that its power kicks in only when domestic authorities lack the capacity or inclination to investigate and prosecute alleged offenders. This hardly describes the position in Israel where the independence of prosecutors and courts are not in doubt.
Fourthly, it is not unreasonable to express grave misgivings about the impartiality of the Court (let alone the UN in general). Before issuing the arrest warrants, the Chief Prosecutor, Karim Khan, sought the advice of an ‘expert panel’ the members of which he personally selected. It has been pointed out that at least two of those members had previously accused Israel of international crimes, and two others had personal links to Khan.
Fifthly, Israel contended that its claim that ‘Palestine is not a State on the territory of which the alleged conduct occurred is in itself sufficient to make Israel the sole State whose acceptance of jurisdiction is required.’ Israel submitted that all that is required for it to have standing under Article 19(2)(c) is that its claim is prima facie tenable, and that it had an ‘immediate right’ to challenge jurisdiction under Article 19 given the current stage of the proceedings.
The judges rejected the argument that merely because Israel claimed that Palestine could not have delegated jurisdiction to the Court, the judges would be required to disregard its previous binding decision. It took the view that there is a fundamental difference between granting a State standing on the presumptive validity of its claim to have jurisdiction, on the one hand, and one granting it standing on the basis of an argument, already ruled upon, that a particular State Party does not have jurisdiction, on the other.
In any event, Israel’s standing was not an issue; the real question, it held, was whether Israel was entitled, or indeed obliged, to challenge the Court’s jurisdiction before it has decided on the issuing of warrants of arrest. It held Israel was not entitled to challenge its jurisdiction prior to the issuance of a warrant of arrest or a summons.
It did, however, hold that Israel will have the opportunity to challenge the Court’s jurisdiction if and when the Court issues any arrest warrants or summonses against its nationals. If I understand this correctly, it suggests that it is open to Israel challenge the jurisdiction of the court and/or the admissibility of the case, on the grounds, for example, that it is already being investigated or prosecuted by the State with jurisdiction over the crimes alleged. The prospects of success may fairly be described as slender.
CONCLUSION
As a defender of the ICC, I consider it as lamentable that its credibility has – at a stroke – been grievously diminished by this exercise of bias (which the Israeli Prime Minister has castigated as antisemitic). In consequence of this travesty, the Trump administration might well impose sanctions against the Court thereby emasculating its essential powers.
The world’s dictators and terrorists will be jubilant.
About the writer:
Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of 17 books and editor of ten.
The seventh edition of his Understanding Jurisprudence: An Introduction to Legal Theory will be published by Oxford University Press in 2025.
The Rule of Law Under Fire? (Bloomsbury/ Hart Publishing) appeared in 2021.
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