Tuesday 21 May 2024

ICC Prosecutor seeks arrest warrants

On 20 May the Chief Prosecutor of the International Criminal Court (the ICC) announced that he is seeking warrants for the arrest of:

Yahya SINWAR (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip)

Mohammed Diab Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and 

Ismail HANIYEH ((Head of Hamas Political Bureau).

ALSO, warrants are sought for 

Benjamin NETANYAHU, the Prime Minister of Israel, and 

Yoav GALLANT, the Minister of Defence of Israel

The Prosecutor's (Mr Karim A. A. Khan KC)'s statement is available via the ICC website - Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine | International Criminal Court (icc-cpi.int)

Khan explains that the applications are 'the outcome of

an independent and impartial investigation by my Office. Guided by our obligation to investigate incriminating and exonerating evidence equally, my Office has worked painstakingly to separate claims from facts and to soberly present conclusions based on evidence to the Pre-Trial Chamber.'

Further, Khan notes that - 'As an additional safeguard, I have also been grateful for the advice of a panel of experts in international law, an impartial group I convened to support the evidence review and legal analysis in relation to these arrest warrant applications. The Panel is composed of experts of immense standing in international humanitarian law and international criminal law ...'

The membership of that Panel is set out in this document dated 20 May 2024 - 240520-panel-report-eng.pdf (icc-cpi.int). (I offer no comment on the make-up of the panel. In any event, the decision to apply for warrants is that of the Chief Prosecutor alone).

It is for the COURT to decide whether to issue warrants for any or all of those individuals. The court is the sole arbiter as to whether the necessary standard for the issuance of warrants of arrest has been met.

The question of the ICC's jurisdiction is not an easy one to answer. In February 2021, the court issued a statement about this - Statement 21 February 2022

The statement notes that, on 5 February 2021, Pre-Trial Chamber I decided, by majority, that the Court’s territorial jurisdiction in the Situation in Palestine (a State party to the ICC Rome Statute) extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

See Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’ | International Criminal Court (icc-cpi.int)

May the ICC subject States to its jurisdiction if they are NOT State Parties to the Rome Convention (which founded the court)? The answer to that is NO but the ICC can investigate and prosecute individuals (as opposed to States). Therefore, individual nationals of non-signatory States may be subject to the Court's jurisdiction under certain circumstances. 

Intimidation / Improper influence?

The Chief Prosecutor's statement included this comment - 'It is critical in this moment that my Office and all parts of the Court, including its independent judges, are permitted to conduct their work with full independence and impartiality. I insist that all attempts to impede, intimidate or improperly influence the officials of this Court must cease immediately. My Office will not hesitate to act pursuant to article 70 of the Rome Statute if such conduct continues.'

It therefore appears that there has been some form of misconduct but its nature is not specified. Article 70 deals with Offences against the administration of justice and you can read it at RomeStatutEng1.pdf (icc-cpi.int).

End Note:

The State of Israel is NOT a signatory to the Rome Convention.

As of 4 April 2024, Palestine is recognised by 165 out of 193 United Nations member States. (It is not recognised as a State by the UK).

Palestine acceded to the ICC from 2 January 2015.

Within the UK, Hamas is a proscribed organisation - Proscribed terrorist groups or organisations - GOV.UK (www.gov.uk)

Addendum 28 May 2024

The prosecutor's announcement met with considerable criticism including the accusation that he was implying "moral equivalence" between the conduct of HAMAS and the State of Israel. One article comments - 'Irwin Cotler, a former Canadian justice minister and attorney general, has strongly criticized the decision by International Criminal Court Prosecutor Karim Khan to seek arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, accusing Khan of double standards in his dealings with Israel, of riding roughshod over the key principle of complementarity, and of weaponizing the ICC against Israel.'

Irwin Cotler: ICC prosecutor weaponized international law in ‘incomprehensible’ way (msn.com)

Leaving aside the "moral equivalence" point, there is some force in the argument that the applications regarding Netanyahu and Gallant were premature. This is because Israel has investigative capability and a functioning legal system. The ICC has a complimentary jurisdiction. It is therefore argued that the prosecutor ought to have fully engaged with the Israeli authorities and only sought warrants as a last resort.

Addendum 30 May 2024

Israeli campaign against ICC may be ‘crimes against justice’, say legal experts | Israel | The Guardian

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