Cemented upon the adoption of the Rome Statute, 1998 (‘the Statute’), the International Criminal Court (‘ICC’) was established with the sole purpose of culminating the perpetuation of impunity possessed by the perpetrators of grave international violations, including war crimes, crimes against humanity, and genocide in 2002, holding a seat at the Hague, the Netherlands[1]. Owing to the expansive heinous crimes committed by the State of Israel against the State of Palestine, the ICC issued an arrest warrant in the names of notable officials of the Israeli State earlier this year to hold them accountable before the Court[2]. Said decision of the Court brings forth a pandora’s box of complex issues concerning the legal basis of the warrant, the question as to the jurisdiction of the Court to investigate such matters, and the mandate of Member States to comply with the warrant[3], and in evaluating the aforementioned, this article seeks to explore the mechanisms available for the Court to enforce its decisions—highlighting the concept of ‘cooperation’ that is ever so important in international dimensions.
1. Understanding the Legal Foundation vis-a-vis the Arrest Warrant
On Oct 7, 2023, the Palestinian militant group Hamas hurled attacks on the Israeli communities, killing around 1200 people and capturing more than 250 hostages with them; in retaliation, Israel declared war on Hamas and launched a massive military operation in Gaza, which is still ongoing with continuous air strikes, blockades, bombardments, and ground invasion and has resulted in more than 46,000 deaths till today[4]. Following these attacks on Israel and Palestine, the ICC issued arrest warrants against the Israeli officials and the Commander in Chief of Hamas’s military wing Diab Al-Masri (commonly known as Deif) [5], Israeli Prime Minister Benjamin Netanyahu, and former Israeli Minister of Defense Yoav Gallant, over charges of war crimes and crimes against humanity[6].
The arrest warrants were issued by the Pre-Trial Chamber under Article 58 of the Rome Statute of the ICC[7]. The Pre-Trial Chamber is a 3-judge or a single-judge court[8] formed to initially determine the jurisdiction of the Court over the matter by granting or denying the Prosecutor leave to initiate an investigation. It issues warrants of arrests and summonses to appear before the Court at the request of the Prosecutor[9]. Therefore, these warrants were an approval of the application submitted by the Prosecutor on 20th May 2024 to arrest the individuals[10].
1.1 The Grounds for the Warrant
According to Article 58 of the Rome Statute, after the commencement of an investigation, the Pre-Trial Chamber may issue warrants for arrests on “reasonable grounds to believe” that the suspects have committed the crimes[11] to ensure the individuals’ presence in the Court and to prevent the continuation of these crimes[12].
With many hospitals in the Gaza Strip being bombed, ambulances and healthcare workers targeted, children killed, hostages taken by both Israel and Hamas, and blockades on food, water, and medical supplies, there seems to be no shortage of evidence[13]. Bearing into mind these events, the court held both Netanyanhu and Gallant responsible for using starvation as a weapon, referring to Israel’s systemic limitation of food and humanitarian aid supplies in Gaza during the conflict and further accused them of murder, persecution, and inhuman acts on the grounds of Israel’s deliberate attacks on medical facilities in the Gaza Strip[14]. On the other hand, Deif was accused of crimes against humanity and war crimes of mass killing and extermination, including for his role as a mastermind behind the October 7 attacks[15].
2. The Jurisdictional Dilemma: The ICC’s Role in the Israel-Palestine Context
The ICC, as a court of last resort, can only exercise its jurisdiction when the state is unable or unwilling to investigate or prosecute the crime itself[16]. As in the case of Israel and Palestine, it seems both states are unwilling to investigate and prosecute the concerned crimes and individuals involved on the national level after a year has passed, and the attacks are only getting worse. The state of Israel has probed into the corruption charges on Netanyahu[17]; however, it omits to hold him accountable for his gruesome actions against the people of Palestine, which shows their reluctance to prosecute him over these crimes. In relation to the State of Palestine, there is hardly any proper form of government to address these crimes committed by the person whose whereabouts are unknown[18]. Therefore, it had become incumbent upon the ICC to take action for the sake of international peace and security.
In this regard, the ICC has the power to act over crimes of international concern, as mentioned in the statute[19], if they have been referred to the Prosecutor, by a state party or the UN Security Council or when the Prosecutor initiates an investigation in respect of such a crime on its own according to Article 15 of the Rome Statute[20].
The ICC Prosecutor received referrals of the situation in Palestine from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti on 17 November 2023[21] and later on 18 January 2024, from the Republic of Chile and the United Mexican States[22]. This prompted the jurisdiction of the ICC on crimes the suspects are charged with. Furthermore, the ICC may exercise its jurisdiction over individuals who are nationals of the state which has signed and ratified the Rome Statute and thereby accepts the jurisdiction of the ICC to prosecute the crimes stated under Article 5 of the Rome Statute[23]. Given this, Israel has challenged the jurisdiction of the ICC because it is not a signatory to the Rome Statute and does not recognize the ICC[24]. However, it has no impact on the power of the Court to try Israeli nationals, as according to Article 12(2)(a) of the Statute, the Court also has jurisdiction if the crime in question is committed on the territory of a state party, i.e. Palestine[25]. Therefore, the ICC is not mistaken under the law to issue warrants for the arrest of Israeli officials involved in the commission of international crimes.
3. The Sanctity of the ICC’s Decision: Obligations, Oppositions, and Implications
With the issuance of such an arrest warrant, an undoubted question mark imprints itself upon the role of the ICC’s member states in dealing with this instance. Pursuant to Article 86 of the Rome Statute[26], all 124 member states that are party to the Statute are under a general obligation to comply with the warrant. Essentially, this means that this decision is incumbent[27] upon the entirety of the State Parties to cooperate by assisting in the arrest, surrender, or facilitation of individuals named in the warrant as part of their treaty commitments[28]. One such example of assistance pertains to a member state handing over the named individuals in the warrant if found within their territories to the respective authorities[29].
3.1 Legal Framework that Defines Member States’ Obligations
Herein, as mentioned above, it is Article 89 of the Rome Statute that imposes an obligation upon member states to ensure the execution of arrest warrants should the suspects be found within the state’s territory[30]. Such a duty is additionally bolstered by case laws originating from the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), including the Prosecutor v. Blaškić[31], whereby the Appeals Chamber evaluated the International Tribunal’s authority to issue orders to States, finding that: .
“The International Tribunal is empowered to issue binding orders and requests to States, which are obliged to comply with them pursuant to Article 29 of the Statute and that, in case of non-compliance, a Trial Chamber may make a specific judicial finding to this effect and request the President of the International Tribunal to transmit it to the United Nations Security Council[32]…”
Akin to this decision are those reflected in cases like Prosecutor v. Akayesu decided by the International Criminal Tribunal for Rwanda (‘ICTR’)[33]. Here, the Court reiterated the duty of all of the States to act in accordance with the Statute of the Court as its organ, stating that by its resolution 978 of 27 February 1995, the Security Council “urge[d] the States to arrest and detain, in accordance with their national law and relevant standards of international law… persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the International Tribunal for Rwanda[34].”
It is, in view of the illustrated cases hereinabove, that the responsibility of the Member States in enforcing the concurrent arrest warrant issued by the ICC becomes a duty imperative to execute[35]. Where Blaškić showcases the binding nature of the orders of the Court upon its States, making it compulsory for them to follow through said orders, cases like Akayesu are representative of the obligations imposed on the Member States in the instance of the order for arrest[36]. Henceforth, it is safe to assume that all the Member States are duty-bound to enforce the arrest warrant should the named Israeli officials be found in their territories—solidifying that the Member States’ obligations are much more than mere aspirations, but legal norms that must be enforced[37].
3.2 Non-Party Status of Israel and Its Implications
However, the same is not held true for the State of Israel, a non-member state[38]. Israel’s non-party status has exempted it, ages ago, from adhering to any legal obligations that the ICC might impose upon it: a morbid fact that reflects how limited of an impact the decision of the ICC has over states that failed to ratify the statute, for it births a gaping hole in international justice each time non-member states are involved[39]. Despite this, non-compliance might become complicated, owing to potentially strained diplomatic relations and international pressure exerted—an evident precedent being the global backlash faced by South Africa for its failure to rightfully arrest the Sudanese President, Omar Al-Bashir, in 2015[40]. Such backlash is not always restrained to verbal condemnations: Israel might be subjected to economic sanctions[41], restricted mobility[42], and diplomatic blocks.
3.3 Potential for Voluntary Cooperation
And so, it becomes integral to evaluate what measures Israel might adopt in navigating these issues, given that the ICC may also issue a request for cooperation under Article 87 of the Rome Statute[43]. This article serves as a binding obligation upon member states, though it is a voluntary compliance (if cooperated) on the part of non-members like Israel[44]. This adherence, again, seems unlikely to be followed through on the end of Israel, provided that the State withholds a longstanding vehement and consistent opposition with regard to the jurisdiction of the ICC to investigate matters pertaining to the Palestinian territories[45]. The strongest of these rejections surfaced in 2021[46] (a reaffirmation of its stance in 2009[47]), post ICC’s declaration to inquire into the occupied Palestinian territories, including Gaza, the West Bank, and East Jerusalem, for alleged war crime.
4. Key Takeaways
On a final note, it is rather apparent that the ICC performs a pivotal role in the international pursuit of justice, holding war criminals accountable for their heinous crimes, including war crimes, crimes against humanity, and genocide, that otherwise seek to disrupt peace and security.
In the discussion above, it has been made utterly transparent that while the issuance of the arrest warrant is a significant and crucial step by the ICC. The Court is subjected to multiple obstacles in terms of its authority to have its decisions enforced and complied. For example, the persistent questions raised by the non-member State, Israel, as to the jurisdiction of the Court to investigate the Palestinian territories, coupled with its blunt reluctance to abide by the Court’s decision, showcases its express disregard for the Court’s orders. These issues bubble to the surface certain challenges to the Court’s authority, ultimately blurring over its legitimacy in international dimensions. It is, thus, suggested for the ICC to reinforce its mechanisms that can deal more effectively with non-compliant and non-party States to ensure greater adherence rates. This could be executed via a strengthened political unity amongst Member States that could exert extensive influence for the ICC’s orders to be wholly complied with.
Footnotes
[1]International Criminal Court. ‘The ICC at a Glance’ <https://www.icc-cpi.int/sites/default/files/ICCAtAGlanceEng.pdf>
[2] International Criminal Court, ‘Situation in the State of Palestine: ICC Pre-Trial Chamber I issues warrant of arrest for Mohammed Diab Ibrahim Al-Masri (Deif)'(2024) https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-issues-warrant-arrest-mohammed-diab-ibrahim
[3] UN Office of the High Commissioner for Human Rights (OHCHR), ‘‘ICC arrest warrants can help save lives, must be respected and complied with’: UN experts’ (2024) <https://www.ohchr.org/en/press-releases/2024/11/icc-arrest-warrants-can-help-save-lives-must-be-respected-and-complied-un>
[4]Al Jazeera, ‘Israel-Gaza War in maps and charts: Live Tracker’(2024)https://www.aljazeera.com/news/longform/2023/10/9/israel-hamas-war-in-maps-and-charts-live-tracker
[5] Ibid.
[6] International Criminal Court, ‘Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant’ (2024) https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges
[7] Article 58, ICC Rome Statute
[8] Article 39 (2)(b)(iii) of the ICC Rome Statute
[9] Article 57(3) of the ICC Rome Statute
[10] International Criminal Court, ‘Statement of ICC Prosecutor Karim AA Khan KC: Applications for arrest warrants in the situation in the State of Palestine’ (2023) https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine
[11] War Crimes stated under Article 5 of the ICC Rome Statute
[12] Article 58 of the ICC Rome Statute
[13] Human Rights Watch, ‘Israel: Starvation Used as Weapon of War in Gaza https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza
[14] Ibid.
[15] Ibid.
[16] See Article 17 of the Rome Statute of the ICC
[17] Farah Najjar, ‘Benjamin Netanyahu’s corruption trial, what you need to know’ (Al Jazeera, 9 December) https://www.aljazeera.com/news/2024/12/9/benjamin-netanyahus-corruption-trial-what-you-need-to-know
[18] ‘Israel says Hamas commander Mohammed Deif killed in July air raid on Gaza’ (Al Jazeera, 2024) https://www.aljazeera.com/news/2024/8/1/israel-says-hamas-military-leader-mohammed-deif-killed-in-july
[19] Article 5 of the ICC Rome Statute
[20] Article 15 of the Rome Statute
[21] Ibid.
[22] ‘Letters written by the Republic of Chile and the United Mexican State < https://www.icc-cpi.int/sites/default/files/2024-01/2024-01-18-Referral_Chile__Mexico.pdf >
[23] Article 13 of the ICC Rome Statute
[24] Ben Green, ‘Israel Responds to the ICC Prosecutor’s Request for Arrest Warrants’ (Lawfare, October 7, 2024) https://www.lawfaremedia.org/article/israel-responds-to-the-icc-prosecutor’s-request-for-arrest-warrants
[25] International Criminal Court, ‘State of Palestine’ https://www.icc-cpi.int/palestine#:~:text=On%202%20January%202015%2C%20The,Palestine%20on%201%20April%202015.
[26] Rome Statute of the International Criminal Court
[27] UN Office of the High Commissioner for Human Rights (OHCHR), ‘‘ICC arrest warrants can help save lives, must be respected and complied with’: UN experts’ (2024) <https://www.ohchr.org/en/press-releases/2024/11/icc-arrest-warrants-can-help-save-lives-must-be-respected-and-complied-un>.
[28] Ibid.
[29] Article 89 of the Rome Statute of the ICC
[30] Rome Statute of the International Criminal Court
[31] ICTY, The Prosecutor v. Blaskic (International Committee of the Red Cross) <https://casebook.icrc.org/case-study/icty-prosecutor-v-blaskic>
[32] PROSECUTOR v. TIHOMIR BLASKIC: JUDGEMENT ON THE REQUEST OF THE REPUBLIC OF CROATIA
FOR REVIEW OF THE DECISION OF TRIAL CHAMBER II OF 18 JULY 1997 (The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia), after para. 69, under heading ‘3, disposition 1, <https://www.icty.org/x/cases/blaskic/acdec/en/71029JT3.html#III>
[33] The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998), para. 2, available at: University of Minnesota Human Rights Library
[34] S/RES/978 of 27 February 1995, operative para. 1, page 2, available at: http://unscr.com/en/resolutions/doc/978
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38]Daniel Benoliel & Ronen Perry, ‘ISRAEL, PALESTINE AND THE ICC’ <https://asp.icc-cpi.int/sites/asp/files/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281910/BPIsraelPalestineandtheICCMay2011.pdf>.
[39] Ibid.
[40] Amnesty International, ‘ICC rules against South Africa on shameful failure to arrest President Al-Bashir’ (2017) <https://www.amnesty.org/en/latest/news/2017/07/icc-rules-against-south-africa-on-shameful-failure-to-arrest-president-al-bashir/>.
[41] United Nations Security Council, ‘Security Council Committee established pursuant to resolution 1718 (2006)’ <https://main.un.org/securitycouncil/en/sanctions/1718>.
[42] New Zealand Foreign Affairs & Trade, ‘Implementation of travel bans on Myanmar military leaders’ (2021) <https://www.mfat.govt.nz/en/media-and-resources/implementation-of-a-travel-ban-on-myanmars-military-leaders>.
[43] Rome Statute of the International Criminal Court
[44] Coalition for the International Criminal Court, ‘State Support and Cooperation’ <https://www.coalitionfortheicc.org/fight/state-support-and-cooperation>.
[45] Ibid.
[46] International Criminal Court, ‘ICC Pre-Trial Chamber I issues its decision on the Prosecutor’s request related to territorial jurisdiction over Palestine’ (2021) <https://www.icc-cpi.int/news/icc-pre-trial-chamber-i-issues-its-decision-prosecutors-request-related-territorial>.
[47] The Christian Science Monitor, ‘Israel rejects Palestinian statehood bid via the UN’ <https://www.csmonitor.com/World/Middle-East/2009/1115/p01s01-wome.html>.
Authors:
Syeda Javeria Ali
Research Associate, RCIL & HR
sy***************@***il.com
Urooj Shafi
Research Associate, RCIL & HR
ur*********@***il.com