ICC accepts deluge of briefs over Gaza war case, likely delaying decision for months
Dozens of briefs to be filed by Israeli allies disputing court’s jurisdiction and its right to request arrest warrants against the Jewish state’s leaders; others will oppose Israel
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The International Criminal court has accepted the requests of 70 states, organizations and individuals to file amicus briefs regarding ICC Prosecutor Karim Khan’s decision to seek arrest warrants for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three Hamas leaders, in a move that will hold up the proceedings against Khan’s targets.
The move means that an ICC decision to grant or reject the arrest warrants will be significantly delayed, likely by several months. It also indicates that the court has concerns about its jurisdiction over the case and its admissibility, raising the possibility that the request for arrest warrants may even be rejected by the pre-trial chamber overseeing the case.
Other cases have, however, also seen significant delays between the request for warrants and their issuance, such as the eight months it took between the request for an arrest warrant against former Sudanese leader Omar al-Bashir in July 2008 and the decision of the pre-trial chamber to approve it in March 2009.
In a bombshell decision in May, Khan filed his request for arrest warrants against the two Israeli and three Hamas leaders — Ismail Haniyeh, Yahya Sinwar, and Mohammed Deif — due to crimes he alleged had been committed during the terror group’s October 7 attack and the subsequent war in Gaza conducted by Israel.
The UK in June requested to file an amicus brief questioning the ICC’s jurisdiction over Israeli nationals, which was accepted by the court, leading to a flood of requests by other parties to do the same.
The court on Monday decided to accept 70 of those requests, many of which will challenge the court’s jurisdiction over the case and its admissibility, although many others will support Khan on both issues.
The deadline to file the briefs is August 6 and each party’s submission may be a maximum of 10 pages in length. The expected delay to a decision on the warrants stems from the large number of submissions that the court’s Pre Trial Chamber I will have to review as well as the fact that Khan must be given an opportunity to respond to the briefs.
Prof. Yuval Shany of Hebrew University’s Faculty of Law, who was given permission to submit an amicus brief together with Prof. Amichai Cohen of the Israel Democracy Institute, said the court’s decision was an “unusual step” that is rarely taken at such a stage of proceedings, and likely indicates the court’s concerns over the jurisdiction and admissibility issues.
Other parties granted permission by the pre-trial chamber to file amicus briefs who will likely be supportive of Israel’s position include Germany, which has flagged concerns about the admissibility of the case; the US; Argentina; US Senator Lindsey Graham; the Israel Bar Association; the International Association of Jewish Lawyers and Jurists; and a group of organizations that include UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Center.
The parties hostile to Israel’s position that have also been given permission to file briefs include South Africa, Ireland, Bangladesh and Spain.
The jurisdiction concern relates to claims by Israel, as well as the UK and others, that the ICC does not have jurisdiction over Israeli nationals since the terms of the Oslo Accords signed between Israel and the PLO state explicitly that Palestinian authorities will not have criminal jurisdiction over Israeli citizens.
Since the ICC works under the principle that its member states delegate their ability to exercise criminal jurisdiction to the court, Israel and its allies claim that the Palestinians never had jurisdiction in the first place to confer on the ICC.
Additionally, in 2021 — when the ICC ruled that the court did have jurisdiction over any alleged war crimes and crimes against humanity committed in the West Bank, East Jerusalem, and Gaza despite the “State of Palestine” not being a sovereign state — it stated that it would rule at a later date on the jurisdiction problems raised by the Oslo Accords.
The admissibility concerns relate to claims made against Khan that he has not respected the key principle of complementarity, which underpins the court’s legitimacy in his request for warrants against Netanyahu and Gallant.
Complementarity is the principle in the Rome Statute — the ICC’s founding charter — that prohibits the court from conducting a trial against an individual whose own state is able and willing to hold independent legal proceedings for the crimes in question.
Although Israeli law enforcement agencies and officials are not known to have opened such investigations, Israel and its allies have claimed that Khan did not allow enough time for those agencies to consider whether investigations were warranted.
Critics of Khan have pointed out that he has engaged at length with other subjects of his investigations, such as with the dictatorial regime of Nicolas Maduro in Venezuela, with which he recently formed a cooperative framework for “positive complementarity initiatives” to address the severe crimes against humanity allegations made against the regime.
“There are indications that at least one country, Germany, has raised concerns that the speed in which the prosecutor has pushed the case forward has not allowed the Israeli legal system to react in real time [in response] to the allegations,” said Shany, adding that this could mean that the principle of complementarity in Israel’s case “has been applied in ways that do not give sufficient time for the practicalities of investigating cases during a time of war.”
Stefan Talmon, a professor of international law at the University of Bonn in Germany, wrote on X following the ICC’s announcement on Tuesday that “Pre-Trial Chamber I seems intent to comprehensively (re-)consider the question of the ICC’s jurisdiction and perhaps exercise its discretion as to reviewing the admissibility of the case.”
Last week, Talmon wrote that Germany’s brief will focus on the admissibility issues and will argue that the case is inadmissible “because the question of complementarity cannot be decided during an ongoing armed conflict.”
