Israel blasts ICC prosecutor for seeking warrants without giving time for allegations to be probed

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

International Criminal Court Prosecutor Karim Khan at the Cour d'Honneur of the Palais Royal in Paris on February 7, 2024. (Dimitar Dilkoff/AFP)
International Criminal Court Prosecutor Karim Khan at the Cour d'Honneur of the Palais Royal in Paris on February 7, 2024. (Dimitar Dilkoff/AFP)

In a submission to the International Criminal Court (ICC), Israel castigates the court’s prosecutor Karim Khan for failing to give Israel the opportunity to investigate his allegations before seeking arrest warrants against its leaders, a fundamental principle of the ICC’s founding charter.

The submission to the ICC’s Pre-Trial Chamber I, which is reviewing Khan’s request for arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, also argues that the ICC has no jurisdiction over Israeli nationals.

In the filing, made public yesterday by Israel but submitted last month, Israel’s legal representative Gilad Noam insists that under Article 18 of the ICC’s Rome Statute which governs the courts actions, and in line with previous rulings by the court, the prosecutor must provide “sufficiently specific” information to the state under investigation about the crimes that he is investigating, in order to give that country the ability to inform the court that it is willing to carry out such investigations itself, and prosecute when necessary.

Despite this requirement, Khan relied on a 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, Israel’s submission points out.

Noam also details Israel’s explicit request to the court on May 1 this year, before Khan requested the arrest warrants against Netanyahu and Gallant on May 20, 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 a state is incapable or unwilling to do so.

This information was never forthcoming from the prosecutor, Noam says.

“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 writes in the submission.

“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,” Noam adds.

He therefore requests that the Pre-Trial Chamber halt any proceedings against Israel until sufficient notification has been issued.

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