Legal earthquake: ICC charges against Netanyahu would be unprecedented in court’s history
Court may take weeks or months to approve warrants. Gravest charges of crimes against humanity relate to humanitarian crisis in Gaza, alleged use of starvation as tool of war
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The announcement Monday by the International Criminal Court’s Chief Prosecutor Karim Khan that he has applied for arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for crimes against humanity in the war against Hamas in Gaza may be the most shocking legal bombshell in Israel’s history.
Alongside the Israeli leaders, Khan also announced that he is seeking arrest warrants for Hamas’s senior leadership — Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh.
Should the warrants be granted by the court’s judges, Netanyahu would join the ranks of Russian dictator Vladimir Putin, former Sudanese despot Omar al-Bashir, and the now-deceased tyrant of Libya Muammar Gaddafi — all national leaders against whom arrest orders have been issued.
But Netanyahu would become the first ever leader of a Western-oriented country to be charged by the ICC.
“This is a watershed event in the history of international justice,” Reed Brody, a veteran war crimes prosecutor, told Reuters. “The ICC has never, in over 21 years of existence, indicted a Western official. Indeed, no international tribunal since Nuremberg (against representatives of Nazi Germany) has done so.”
The upshot of such arrest warrants would be that Netanyahu and Gallant would essentially become wanted men in 124 countries around the world, including almost every major Western nation other than the US.
Should either the prime minister or defense minister set foot in a state that is party to the Rome Statute, the ICC’s founding document, that state would be required to arrest them and submit them for trial in The Hague or any other location of the court’s choosing.
Israel will argue vehemently that the ICC has no jurisdiction over its leaders for several reasons, but primarily the fact that the court, by virtue of its charter, cannot hold trials for nationals of countries that have independent judiciaries and that are able and willing to conduct investigations and legal proceedings themselves into the purported crimes the ICC is concerned with.
But beyond the legal repercussions for Netanyahu and Gallant themselves, the diplomatic implications of arrest warrants against the two and the impact they would have on Israel’s standing around the world would be disastrous.
The arrest warrants
A pre-trial chamber of three or four judges will now evaluate Khan’s application for the arrest warrants against Netanyahu and Gallant, based on material submitted to it by Khan and his team.
In only two of the 31 cases currently before the court has the pre-trial chamber not confirmed the charges against the suspect, meaning that arrest warrants were not issued.
That said, there have been cases in which the prosecution has withdrawn charges against individuals due to issues with evidence and concerns that a conviction could not be secured in the case.
This happened with the case against Kenyan President Uhuru Kenyatta, who was charged with crimes against humanity in 2011, before he became president. The charges were dropped in 2014, after he became president.
The pre-trial chamber will also have to address questions of whether it has jurisdiction before issuing the warrants. These will include questions over the extent to which “Palestine” can be considered a state, as well as the question of “complementarity,” the principle in the Rome Statue that prohibits the ICC from conducting a trial against an individual whose own state is able and willing to hold independent legal proceedings for the crimes in question.
How long will the pre-trial chamber take to decide?
The length of the procedure to approve arrest warrants varies, and can range from weeks to several months.
Khan requested an arrest warrant against Putin for war crimes in Ukraine on February 22, 2023, and it was issued by the Pre-Trial Chamber some four weeks later, on March 17.
In the case of Sudan’s Bashir, wanted for genocide and crimes against humanity in Darfur, it took eight months between the request for an arrest warrant and its approval, during which time the pre-trial chamber issued a request from the prosecutor for further material, which it took the prosecutor several months to provide.
What charges does the prosecutor want to file against Netanyahu and Gallant?
Khan is seeking to press the extremely severe charge of crimes against humanity against the prime minister and defense minister, as well as war crimes.
Crimes against humanity is the second most severe charge the ICC can issue, behind only genocide.
By contrast, Putin has only been charged with war crimes — that is, “grave violations” of the laws of armed conflict and the Geneva Conventions.
Netanyahu and Gallant, Khan indicated, would be charged with “starvation of civilians as a method of warfare as a war crime contrary,” as well as “extermination and/or murder… including in the context of deaths caused by starvation, as a crime against humanity,” in relation to the ongoing humanitarian crisis in Gaza.
The two would also be charged with “persecution” and “other inhumane acts” as crimes against humanity; and “willful killing” and “intentionally directing attacks against a civilian population” as war crimes.
The potential charges appear to be especially focused on the issue of the supply of humanitarian aid to Gaza, with Khan mentioning in his announcement that he specifically emphasized Israel’s obligation under international law to “immediately allow access to humanitarian aid in Gaza at scale” and that starvation and denial of aid are crimes under the Rome Statute.
“I could not have been clearer,” Khan said in his comments on Monday.
Israel has also been repeatedly warned by the International Court of Justice, which in contrast to the ICC prosecutes nations rather than individuals, about the importance of providing requisite humanitarian aid to Gaza. In January and March, the ICJ issued orders for Israel to make adequate provision of humanitarian supplies, and it is likely to issue similar orders after a hearing last week.
Is the ICC’s legal process against Netanyahu and Gallant exceptionally quick?
For numerous cases currently before the court, it has sometimes taken the ICC prosecutor at the time years between the instigation of an investigation and the final request for arrest warrants.
This is not to mention the time it has taken between the commission of the suspected crimes and the opening of an investigation in the first place.
In the case of the Darfur genocide perpetrated by Sudanese leaders, the conflict in the region began in 2003, with the US recognizing the situation as a genocide by September 2004. It took the ICC prosecutor at the time until March 2005 to even open an investigation. It then took fully three years for the prosecutor to request an arrest warrant against Bashir.
In the case against Putin, the investigation began in March 2022, very shortly after Russia invaded Ukraine in February that year, but it took the prosecutor almost a year to request an arrest warrant.
It took two years to file a request for an arrest warrant against Ugandan warlord Joseph Kony, and six years between the announcement by the ICC that it was investigating Sudanese defense minister Abdel Raheem Muhammad Hussein for crimes against humanity in June 2005 and the request for an arrest warrant in December 2011.
Does the ICC have jurisdiction?
Israel is not party to the Rome Statute and does not see itself as subject to the ICC’s jurisdiction. But the Palestinian Authority submitted a request to accede to the ICC in 2014 and it was admitted as the State of Palestine in 2015.
Then in 2021, an ICC pre-trial chamber determined that Palestine has been a state since the UN General Assembly gave it observer status since 2012.
This means that the ICC theoretically has jurisdiction over Palestinian citizens and crimes committed on the territory of the putative State of Palestine, including Gaza.
However, some legal experts and scholars argue strongly that since Palestine is not a sovereign state, its standing within the ICC is illegitimate and the court therefore has no authority or jurisdiction over armed conflicts between Israel and Palestinian terrorist organizations and militias.
The principle of complementarity
One crucial component of the Rome Statute, known as the principle of complementarity, is that the ICC will not conduct investigations and file charges against nationals of a country if that country has an independent judiciary, and is capable and willing to investigate and prosecute its own nationals for the crimes listed in the Rome Statute.
Israel will argue strongly that its judiciary is fiercely independent and is fully capable of investigating its own politicians and generals for any suspected violations of international law covered by the Rome Statute.
Indeed, Israel’s legal representatives to the ICJ stated on Friday that there are currently dozens of active investigations into suspected misconduct rising to criminal liability by military prosecutors, and that the Attorney General’s Office was treating some comments as liable for prosecution under charges of incitement to genocide.
Khan himself stated explicitly in December that “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law,” although these comments appear to refer more to legal accountability within the military and not civilian politicians prosecuting the war, such as Netanyahu and Gallant.
That said, Article 17 of the Rome Statute says explicitly that the ICC shall determine a case inadmissible when “the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
The Attorney General’s Office has not given any public notice that it is investigating senior level politicians such as the prime minister or defense minister.
According to Prof. Robbie Sabel, an expert in international law at the Hebrew University’s Faculty of Law, Attorney General Gali Baharav-Miara is highly unlikely to do so since “there is no prima facie evidence that we have committed any of these crimes.”
But if the ICC chief prosecutor believes differently, the complementarity principle may not apply.
Khan specifically addressed this issue in his remarks on Monday, stating that complementarity requires deferral to national authorities “only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham,” and adding: “It requires thorough investigations at all levels addressing the policies and actions underlying these applications.”
Absent evidence of such investigations, Khan will likely wish to push ahead with the case and the judges in the pre-trial chamber may agree with him.
Anne Herzberg, an international law expert and legal adviser of the NGO Monitor organization, argued that Khan was “taking a very narrow definition of complementarity, to go after Israelis.” She contended that the mere fact that there are no indictments yet in Israel did not mean that the ICC was entitled to issue its own charges, and questioned the extent to which Khan had investigated what preliminary examinations or investigations are taking place, or if he could even obtain such information independently.
There is a possibility that the Attorney General’s Office could seek some sort of arrangement whereby it announces an investigation into senior officials for the crimes being investigated by the ICC in order to avert the catastrophe of arrest warrants being issued.
It remains unclear how likely such a scenario is.
Former Canadian justice minister Irwin Cotler pointed out to the Times of Israel recently that Khan recently came to an arrangement with Venezuela, a dictatorial regime led by Nicolas Maduro, to allow for cooperation between Caracas and the ICC, a step that averted the possible issuance of arrest warrants against senior regime officials for crimes against humanity over concerns regarding detention in the country since 2017.
Cotler said he believed any charges brought against Israeli officials would violate the Rome Statute because of Israel’s ability to investigate itself, and pointed to a current petition before the High Court of Justice by several human rights groups asking the justices to order the government to increase the supply of humanitarian aid to Gaza.
“This kind of initiative would undermine the ICC. It would be a breach of the founding principles of the ICC, a breach of admissibility in Article 17, and the first time officials from a democratic country would be brought before the court,” said Cotler in the interview, conducted shortly before Khan’s announcement on Monday.
