The current announcement by the Prosecutor of the Worldwide Prison Court docket (ICC) in search of arrest warrants for leaders of each Israel and Hamas has despatched shockwaves by the area. Not like final 12 months’s comparable motion towards Russian President Vladimir Putin and Maria Lvova-Belova, which obtained widespread approval from Western states, the ICC Prosecutor’s utility on 20 Might 2024 marked the primary time the ICC is pursuing the chief of a Western-backed state.
Prosecutor Karim A.A. Khan KC acknowledged that the arrest warrant purposes resulted from an impartial and neutral investigation, inspecting each incriminating and exonerating proof, with help from a panel of worldwide legislation consultants. He emphasised the evaluate of intensive (however, at this stage, confidential) proof and authorized evaluation performed by his Workplace earlier than submitting the purposes to the Pre-Trial Chamber.
Given the polarised historical past of the Israeli-Palestinian battle, the Prosecutor’s resolution inevitably sparked intensive debates and responses in numerous boards. These ranged from essential, but constructive, commentary to outright advert hominem assaults on the Prosecutor and/or the panel of consultants. As an example, an article showing in The Telegraph the day after the Prosecutor’s utility intently resembled the notorious ‘Enemies of the Individuals’ article that sought to reveal and assault three Excessive Court docket judges for ‘sabotaging’ Brexit. The Telegraph article equally held that the professional panel was ‘populated by a gaggle of British human rights attorneys’ and centered on discrediting their work. It’s at this level that different worldwide attorneys want to talk up.
From a fast evaluate of the responses, there would seem like 4 major criticisms of the Prosecutor’s resolution to hunt arrest warrants. The primary and second could also be categorised as ‘authorized’ questions, and the third and fourth as ‘political’ critiques:
(1) Questions round legislation and reality;
(2) Questions round impartiality;
(3) Critiques referring to ethical equivalence; and
(4) Critiques referring to lawfare.
This put up will briefly think about the above.
(1) Questions round legislation and reality
In his press briefing, the ICC Prosecutor acknowledged that, primarily based on the proof collected and examined by his Workplace, there have been cheap grounds to consider that three members of Hamas (Sinwar, Al-Masri, and Haniyeh) bore legal duty for warfare crimes and crimes towards humanity dedicated in Israel and the State of Palestine (Gaza Strip) from a minimum of 7 October 2023. These costs embrace:
- Extermination as a criminal offense towards humanity, opposite to article 7(1)(b) of the Rome Statute;
- Homicide as a criminal offense towards humanity, opposite to article 7(1)(a), and as a warfare crime, opposite to Article 8(2)(c)(i);
- Taking hostages as a warfare crime, opposite to Article 8(2)(c)(iii);
- Rape and different acts of sexual violence as crimes towards humanity, opposite to Article 7(1)(g), and in addition as warfare crimes pursuant to Article 8(2)(e)(vi) within the context of captivity;
- Torture as a criminal offense towards humanity, opposite to Article 7(1)(f), and in addition as a warfare crime, opposite to Article 8(2)(c)(i), within the context of captivity;
- Different inhumane acts as a criminal offense towards humanity, opposite to Article 7(l)(ok), within the context of captivity;
- Merciless remedy as a warfare crime opposite to Article 8(2)(c)(i), within the context of captivity; and
- Outrages upon private dignity as a warfare crime, opposite to Article 8(2)(c)(ii), within the context of captivity.
The Prosecutor additionally submitted that there have been cheap grounds to consider that two members of the Israeli authorities (Netanyahu and Gallant) bore legal duty for warfare crimes and crimes towards humanity dedicated within the Gaza Strip from a minimum of 8 October 2023. These costs embrace:
- Hunger of civilians as a technique of warfare as a warfare crime opposite to Article 8(2)(b)(xxv) of the Statute;
- Wilfully inflicting nice struggling, or severe harm to physique or well being opposite to Article 8(2)(a)(iii), or merciless remedy as a warfare crime opposite to Article 8(2)(c)(i);
- Wilful killing opposite to article 8(2)(a)(i), or Homicide as a warfare crime opposite to Article 8(2)(c)(i);
- Deliberately directing assaults towards a civilian inhabitants as a warfare crime opposite to Articles 8(2)(b)(i), or 8(2)(e)(i);
- Extermination and/or homicide opposite to Articles 7(1)(b) and seven(1)(a), together with within the context of deaths brought on by hunger, as a criminal offense towards humanity;
- Persecution as a criminal offense towards humanity opposite to Article 7(1)(h);
- Different inhumane acts as crimes towards humanity opposite to Article 7(1)(ok).
After the Prosecutor submitted these purposes, quite a lot of commentaries appeared specializing in questions of legislation and/or reality offered within the purposes and/or the professional panel report. Questions of legislation included, inter alia, questions across the authorized classification of the battle and/or questions round proving the weather of the above crimes, corresponding to hunger, the place ‘the problem of intentionality’ is vital (see right here). On this level, Cohen and Shany posited that: ‘probably the most tough facet of the request for arrest warrant relates, in our thoughts, to the query of intent’ (see right here).
Others centered on questions of reality, questioning the standard and amount of proof evaluated by the Workplace of the Prosecutor (OTP) and/or the panel of consultants, whereas on the similar time admitting that such info was not but within the public area (see, for instance, right here). One such commentary questioned:
‘whether or not the OTP inter alia (a) used correct investigative strategies and practices when conducting its investigation; (b) made use of all accessible video and photographic proof, in addition to witness testimony; and (c) has sought to acquire, and has retained, materials able to exonerating the suspects (in step with the duty conferred by Article 54(1)(a) of the Rome Statute).’
These critiques are essential however untimely at this stage of the authorized course of as a result of, to this point, a lot of the proof and knowledge that the Prosecutor intends to depend on for the above costs has not been made public. This delay, whereas irritating for a lot of, follows the conventional authorized course of.
The Prosecutor has confirmed that the costs in these purposes are primarily based on proof collected and examined by his Workplace, together with website visits, interviews with survivors and eyewitnesses, authenticated video, photograph and audio materials, satellite tv for pc imagery, and statements from the alleged perpetrators. This aligns together with his duties underneath Article 54 of the Rome Statute. We’ll quickly obtain extra element on questions round legislation and reality, when the purposes shall be thought-about by the ICC Pre-Trial Chamber which, on the idea of Article 58(1) of the Rome Statute, must resolve whether or not there are ‘cheap grounds to consider’ that the individual has dedicated a criminal offense throughout the jurisdiction of the Court docket.
(2) Questions on impartiality
One other group of critiques concerned options of bias, particularly relating to the composition of the professional panel however which, if substantiated, would additionally implicate the OTP itself. This hyperlink was indicated in Kern and Herzberg’s put up, the place the authors instructed that, by appointing the professional panel, the Prosecutor was successfully ‘outsourcing the OTP’s evaluate operate’ underneath Article 54(1)(a) of the Rome Statute. The authors requested rhetorically: ‘Was the Panel’s choice, and the id of sure of its members, merely an train in affirmation bias?’
It was The Telegraph article talked about above, nonetheless, that explicitly got down to body the panel of consultants as ‘biased’. The article pointed to previous statements made by people like Baroness Helena Kennedy KC who, as a distinguished human rights lawyer, had frequently commented on human rights challenges world wide. In accordance with The Telegraph article, the next was a press release that purportedly indicated bias: ‘Water is a primary human proper and its denial violates worldwide legislation. It’s a warfare crime… Israel has a proper to self-defence. However it needs to be proportionate and in accordance with worldwide legislation.’
It isn’t instantly clear which half(s) of the above assertion are alleged to recommend ‘bias’ – whether or not it’s the assertion that water is a primary human proper, or the acknowledgment that Israel has a proper to self-defence that have to be exercised proportionately and in accordance with worldwide legislation. What is obvious, nonetheless, is that in search of to silence and/or discourage worldwide attorneys from demanding compliance with worldwide legislation attributable to potential accusations of ‘bias’ could be profoundly misguided. Such calls for are basic to upholding worldwide legislation requirements and guaranteeing justice.
Exterior consultants are typically invited to take part in an evidence-review underneath applicable confidentiality preparations throughout investigations or trials to scale back particular person bias. Sarcastically, the Prosecutor made a deliberate try to seek the advice of a broader array of consultants on this case, inside applicable confidentiality preparations, exactly to advertise better impartiality, to contemplate various explanations or viewpoints, and to scale back particular person bias within the ultimate resolution. To this finish, along with involving members of the OTP, the Prosecutor additionally thought-about the views of the professional panel – whose printed report additional displays a measure of transparency – and different OTP Particular Advisers.
In the end, nonetheless, the choice to hunt arrest warrants rested with the Prosecutor. As famous above, that is solely the start of a authorized course of with quite a few checks and balances. A choose of the ICC Pre-Trial Chamber will now independently evaluate the proof and resolve on the subsequent steps.
(3) Critiques referring to ethical equivalence
The critique of ‘ethical equivalence’ is rooted in ‘simply warfare’ principle, which emphasises the excellence between simply and unjust actions in battle, thereby rejecting the notion that every one sides’ actions are morally equal. As a critique, it has continuously been deployed, typically to nice impact, as a political technique to suppress calls for for justice. As a critique of worldwide legal justice, in a way, it represents the opposite aspect of the ‘victor’s justice’ critique. The place courts pursue one social gathering to a battle, it’s ‘victor’s justice’; the place they pursue extra events, it’s ‘ethical equivalence.’ In Rwanda, the ‘ethical equivalence’ argument was used as a part of a three-step technique to deny justice to victims of the RPF-led regime (see right here). Waldorf notes:
‘Over time, President Kagame has countered such criticism in 3 ways. First, he minimizes each the character and extent of RPF crimes, acknowledging solely “revenge killings” by a small variety of rogue troopers. Second, he claims the Rwandan authorities has introduced these troopers to justice. Lastly, he equates justice for RPF crimes with genocide denial: Whereas some rogue RPF parts dedicated crimes towards civilians in the course of the civil warfare after 1990, and in the course of the antigenocidal marketing campaign, people have been punished severely…To attempt to assemble a case of ethical equivalency between genocide crimes and remoted crimes dedicated by rogue RPF members is morally bankrupt and an insult to all Rwandans, particularly survivors of the genocide. Goal historical past illustrates the degeneracy of this rising revisionism.’
Within the current context, this argument has been utilized by Netanyahu, who described the Prosecutor’s purposes for arrest warrants towards Israeli leaders as ‘an ethical outrage of historic proportion….Mr Khan creates a twisted and false ethical equivalence between the leaders of Israel and the henchmen of Hamas.’ Making an identical level, the US President, Joe Biden acknowledged, ‘no matter this prosecutor would possibly indicate, there is no such thing as a equivalence — none — between Israel and Hamas.’ An article in The Spectator equally criticises the Prosecutor’s request as drawing an implicit equivalence between terrorists and the democratic state preventing them.
From the attitude of worldwide legal justice, nonetheless, the ‘ethical equivalence’ argument doesn’t hinder the prosecution of alleged crimes dedicated by completely different events to a battle. What issues right here just isn’t the relative wrongfulness of the acts, however their legality or in any other case. If alleged acts meet the brink of ‘probably the most severe crimes of concern to the worldwide group as an entire’, then they must be prosecuted, no matter their relative ethical repugnance.
It is a authorized evaluation primarily based on the necessity for justice and combating impunity for alleged worldwide crimes, not an ethical judgment. It stems from the precept that every one events in a battle should adhere to worldwide legislation, no matter who initiated the battle. Legally, and particularly from the victims’ perspective, it issues little whether or not the alleged crimes have been dedicated by terrorists or these preventing them.
(4) Lawfare
One other critique is that the Prosecutor is partaking in ‘lawfare’ by in search of these arrest warrants. The Spectator’s article, titled ‘How Israel ought to combat again towards the ICC’s lawfare,’ argues that as a result of the Prosecutor is concentrating on members of the Israeli authorities, ‘Israel and its supporters ought to start in earnest a marketing campaign advocating for mass withdrawal from the Rome Statute, which might successfully abolish the ICC.’ The writer means that the ICC ought to then be ‘wound up’ and changed with ‘a extra appropriate establishment discovered to fulfil its objective.’ After all, ‘a extra appropriate establishment’ is one that doesn’t pursue Western-backed states.
Lawfare is commonly mentioned in authorities, educational, and media circles, outlined as ‘the technique of utilizing – or misusing – legislation as an alternative choice to conventional army means to attain an operational goal.’ It’s a critique typically levelled at courts concerned in ongoing conflicts. And on this case, it will presumably confer with the ICC getting used to ‘wage’ lawfare towards Israel – which, after all, could be flawed and a transparent abuse of the authorized course of.
There’s, nonetheless, little proof to help the declare of lawfare at this stage. The ICC Prosecutor has publicly affirmed his resolution to pursue these purposes primarily based on cheap grounds to consider that severe crimes, together with hunger, extermination, and persecution, have occurred, constituting severe breaches of worldwide legislation. He has additionally acknowledged that intensive proof has been reviewed to substantiate these costs. Whereas we presently must ‘belief’ the Prosecutor’s assertion, the Pre-Trial Chamber will quickly evaluate the proof and resolve whether or not to verify the arrest warrants. What is obvious from the Prosecutor’s affirmation, nonetheless, is that the proposed costs will not be spurious; reasonably they align with the ICC’s goal of ending impunity for perpetrators of significant crimes.
Conclusion
In concluding his press briefing, the Prosecutor acknowledged:
‘Allow us to in the present day be clear on one core difficulty: if we don’t display our willingness to use the legislation equally, whether it is seen as being utilized selectively, we shall be creating the situations for its collapse. In doing so, we shall be loosening the remaining bonds that maintain us collectively, the stabilizing connections between all communities and people, the security web to which all victims look in occasions of struggling. That is the true threat we face on this second.’
By in search of these arrest warrants, the Prosecutor has activated the ICC’s judicial course of, which incorporates quite a few checks and balances to make sure solely well-founded claims advance. As talked about earlier, some could be very happy to see the ICC discredited and fail. Whereas constructive critique of the ICC and its work is essential, as worldwide attorneys, we should stand towards assaults that goal to short-circuit the authorized course of and the conventional workings of worldwide legal legislation. Solely perpetrators will profit from that.
The editorial group notes that Professor Marko Milanovic was not concerned in reviewing or modifying this put up.
