Israel claims ICC prosecutor denying country’s right to probe Gaza war allegations
Letter says Karim Khan’s refusal to specify the allegations against Israeli leaders before seeking their arrest means he never gave authorities a chance to actually investigate
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
In a submission to the International Criminal Court (ICC) made public on Monday, Israel castigated the court’s prosecutor, Karim Khan, for failing to give the country the opportunity to investigate his allegations before seeking arrest warrants against its leaders, a fundamental principle of the ICC’s founding charter.
In the filing, which was submitted last month but whose details were classified by the court until October 4, Israel insisted that the Rome Statute governing the ICC’s actions and previous court rulings requires that prosecutors provide “sufficiently specific” information to the state under investigation about the crimes that they are investigating, in order to give that country the ability to inform the court that it is willing to carry out such investigations, and prosecute when necessary, itself.
As well as panning what it said was Khan’s failure to abide by this foundational principle of the ICC as a court of last resort, Israel’s submission also insisted that the ICC has no jurisdiction over Israeli nationals due to specific provisions in the Oslo Accords that stipulate that the Palestinian Authority has no such jurisdiction, and therefore cannot delegate it to the ICC.
In May, Khan filed a request for arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, alleging that they had committed crimes against humanity and war crimes in their prosecution of the war against Hamas in Gaza following the terror organization’s invasion and massacre on October 7 last year.
Allies of Israel strongly criticized the decision, insisting that the principle of complementarity, by which the ICC cannot prosecute if the relevant country is itself investigating allegations of criminal conduct, precluded an ICC prosecution of Israel at present.
US Secretary of State Anthony Blinken accused Khan of rushing to obtain the arrest warrants, while two US senators accused him of “efforts to politically target Israel.”
Writing in Israel’s submission to the ICC dated September 23, Israel’s legal representative in the proceedings, Dr. Gilad Noam, noted that Article 18 of the Rome Statute says that the prosecutor must notify a state that it is under investigation, and that that country has the ability to inform the prosecutor within a month that it is itself investigating the allegations and for the prosecutor to defer his investigation for the state’s.
Despite these stipulations, Khan did not inform Israel about his investigation into concerns regarding Israel’s conduct and that of the IDF in Gaza during the war, beginning October 7, 2023.
Instead, Noam noted that Kahn had relied on notification sent to Israel about alleged crimes the ICC was investigating in March 2021, before Khan even took office, based on a referral dating back to 2018 relating to Israeli settlement policy and claims raised in previous “hostilities” in Gaza.
Noam also detailed Israel’s explicit request to the court on May 1 this year, before Khan requested the arrest warrants against Netanyahu and Gallant, for information regarding the alleged crimes he was investigating, so that Israel’s legal authorities could investigate them itself, in line with the court’s charter that it may only investigate and prosecute crimes where another state is incapable or unwilling to do so.
This information was never forthcoming from the prosecutor, Noam wrote, adding that the ICC has previously ruled in a case regarding Venezuela that the prosecutor must define the scope of his investigation in his notification, and that it be “sufficiently specific” in order for the country under investigation to assert its rights under Article 18 to investigate itself.
Noam noted that an ICC “advance team” had been scheduled to arrive in Israel to discuss the investigation on May 20, but that the visit was canceled at the last minute and Khan announced that he was seeking the warrants on that exact date instead.
“Despite having been forced into a bloody conflict that it did not want, Israel remains a democracy endowed with an independent judiciary and deeply committed to the rule of law, including the principles of international humanitarian law,” he wrote in the submission to the Pre-Trial Chamber.
“The undeniable fact is that Israel, despite having made requests to the Prosecution, has never received notice of the scope of the Prosecution’s intended or actual investigation into events since 7 October 2023,” the Israeli submission added.
The filing therefore requested that the Pre-Trial Chamber halt any proceedings against Israel until sufficient notification has been issued.
The Pre-Trial Chamber’s deliberations over Khan’s request for arrest warrants has been significantly delayed following the chamber’s decision in July to review amicus briefs on the case submitted by third parties, including over the issue of jurisdiction.
Dozens of briefs were filed, followed by Khan’s response, and the Pre-Trial Chamber is now in the process of reviewing those submissions and Khan’s response, as well as Israel’s new submission.