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In a two-part opinion series, James Onalaja considers the International Criminal Court Prosecutor’s requests for arrest warrants in the controversial Israel-Palestine situation
Karim Khan KC, the Prosecutor of the International Criminal Court (ICC) announced on 20 May 2024 that his Office of the Prosecutor (OTP) was applying to the ICC Pre-Trial Chamber (PTC) for arrest warrants for Hamas leaders: Yaha Sinwa (Gaza Head); Mohammed Deif Al-Marsi (Al-Qassam Brigades’ Commander-in-Chief) and Ismail Haniyeh (Political Bureau Head). According to OTP, the evidence collated provides reasonable grounds to believe that they bore responsibility for war crimes and crimes against humanity (CAH) committed both on Israeli and Palestinian territories since 7 October 2023 i.e. CAH of extermination, murder, and in the context of captivity: rape and sexual violence, torture, other inhumane acts and, war crimes including taking hostages, and in captivity context: cruel treatment, and outrages upon personal dignity, all contrary to Articles 7 and 8 Rome Statute (RS). OTP views all three as criminally responsible for planning and instigating the 7 October attacks and for the 245 hostages taken, and have allegedly acknowledged responsibility for these crimes through their actions. Reports suggest that the latter two Hamas leaders sought may have been killed by Israeli security forces.
Additionally, Khan announced his seeking of arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. According to OTP, the evidence analysed provides reasonable grounds to believe that both bore responsibility for war crimes and CAH, committed in Gaza from at least 8 October 2023. This includes wilfully causing great suffering or serious injury to body or health; wilful killing or murder; intentionally directing attacks against civilian population; extermination and/or murder including in the context of deaths by starvation, persecution and other inhumane acts.
According to OTP, the analysed evidence shows Israeli forces intentionally and systematically deprived Gaza’s civilians of objects indispensable to survival, by imposing a total siege over Gaza for extended periods since 8 October and thereafter arbitrarily restricting transfer of essential supplies, alongside attacks on civilians, including those queuing for food, obstructing aid deliveries, attacks on and killing aid workers thus forcing them to limit or cease operations. OTP alleges that these acts were committed as part of a common plan using starvation as a method of war and other acts of violence against Gaza’s civilians, as a means to eliminate Hamas, secure the hostages’ return and collectively punish Gaza’s civilians.
Khan seeks to charge both Hamas and Israeli leaders respectively as co-perpetrators and superiors under Articles 25 and 28RS. They are said to have respectively committed the alleged crimes jointly with their combatants or through them. Alternatively, they were: in positions of effective command and control over the principal perpetrators; knew or should have known perpetrators were committing or were about to commit the alleged crimes and; failed to take all necessary and reasonable measures within their powers to prevent or repress these offences or submit cases to competent authorities for investigation and prosecution.
Limited criticism is levelled at OTP for seeking the Hamas leaders’ arrest. The only criticism from within the Israeli government was that OTP waited over seven months before seeking their arrest, failing to take into account the fact that: this was one of the fastest arrest requests by OTP in any conflict known to the public; no criminal case (especially one as complex during ongoing conflict) can be brought simply on allegations made by others without first investigating, collating, recording and analysing the evidence and making decisions on the: most appropriate individuals bearing the highest criminal responsibility; appropriate offences and; modes of liabilities to charge; and further, Israel’s apparent lack of cooperation with the OTP investigation and refusal to allow OTP access to Gaza.
Arguably, there is little dispute that the publicly available evidence from both multimedia and eyewitness evidence from the six attack locations across southern Israel (including the Supernova music festival) provides more than reasonable evidence pointing to a widespread and systematic attack against the Israeli civilian population. Furthermore, considering the ongoing Gaza hostage situation which the Hamas leaders are alleged to have claimed responsibility for, there are arguable grounds to request the said Hamas arrest warrants based on an alleged common plan involving the commission of war crimes and CAH.
With respect to the warrant request for the Israeli leaders, there has been a barrage of criticism from a wide cross-section of states with perceived respect for the rule of law and the international rules-based order, culminating in the US House of Representatives voting to re-impose sanctions on individuals involved in ICC prosecutions of US citizens and of allies such as Israel.
An early criticism came from UK’s then Foreign Secretary, Lord Cameron on 21 May 2024. Apparently ‘because Israel is not a signatory to the Rome Statute and Palestine is not yet recognised as a State we don’t think the Court has jurisdiction…’. This is inaccurate for several reasons.
Firstly, as of April 2022, 138 of the 193 United Nations (UN) member states recognised Palestine as a State. In 2012, the UN General Assembly (UNGA) passed resolution 67/19 of December 2012 affording Palestine ‘a non-member observer State’ status, carried by 138 states. Furthermore, on 9 May 2024, 143 UN member states voted in favour of Resolution on Admission of New Members, which determined that ‘the State of Palestine is qualified for membership in the [UN] in accordance with Article 4 of the Charter [i.e. full membership] and should therefore be admitted to membership in the [UN]’. Cameron was wrong to claim that Palestine is not recognised as a State. That UK does not recognise Palestine as a State (if Cameron meant that) is irrelevant to ICC’s jurisdiction in this matter.
As the PTC found in its 5 February 2021 Palestine Jurisdiction Decision, adopting UNGA Resolution 67/19 provided Palestine with the status to ‘become party to any treaties that are open to “any State” or “all States” deposited with the [UN] Secretary- General’. This enabled Palestine to deposit an instrument of accession with the UN Secretary General (UNSG) on 2 January 2015, consistently with Article 125(3)RS, which was accepted by him. Thus, Palestine became an RS party on 1 April 2015, when the statute came into force in Palestinian territory, an event marked with a welcome by the RS Assembly of States Parties (ASP) President. The PTC observed that regardless of objections subsequently being raised by some states, during Palestine’s accession, this was unchallenged before the ASP. Once conditions of accession pursuant to Article 125 RS are fulfilled, the effect is that the RS automatically enters into force for the new State party including Palestine, regardless of its status under general international law (paras 98-112).
The PTC reiterated that disputed borders have never prevented states from becoming State parties. It found that in accordance with Resolution 67/19 reaffirming the right of the Palestinian people to self-determination and independence on Palestinian territory occupied since 1967, and other similarly worded resolutions including UNGA 66/146 of 19 December 2011 stressing ‘the need for respect for and preservation of the territorial unity, continuity and integrity of all Occupied Palestinian Territory including East Jerusalem’ (OPT) and a host of UNSC Resolutions including UNSC/Res/242 of 22 November 1967 which clarified that Israel’s fulfilment of UN Chapter principles includes withdrawal from territories recently occupied and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area, and UNSC RES/449(1979) which ‘calls once more upon Israel … to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967’, the PTC firmly concluded that ICC’s territorial jurisdiction extends to ‘territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem’ (paras 115-118).
While jurisdiction may be subject to further litigation (if the warrants are issued) as part of the Article 19(2)RS procedure challenging jurisdiction and admissibility, considering the recent developments set out above and the International Court of Justice’s (ICJ) 19 July 2024 Advisory Opinion to the UNGA on the Legal Consequences of Israel’s Practices in the OPT, reasserting the Palestinian right to self-determination and the illegality of Israel’s occupation of Palestinian territories dating back to 1967, it is highly unlikely that the ICC will conclude that it has no jurisdiction in this situation.
President Biden parroted Cameron’s other point above that ICC has no jurisdiction because Israel was not a RS State Party. However, as observed by the PTC in its jurisdiction decision, in accordance with Article 12(2)RS, the ICC may exercise jurisdiction either where the State on whose territory the alleged conduct occurred is a party or the State of the accused is a party (paras 89-90). It follows that ICC has jurisdiction over alleged RS crimes perpetrated on Palestinian territory by whomever irrespective of nationality, including Israelis, and over crimes allegedly perpetrated by Palestinians on other states’ territories including Israeli territory. As a result, the court has jurisdiction over acts allegedly perpetrated by Palestinian Hamas leaders both on Israeli territory and in Gaza, and allegedly perpetrated by Israelis including Netanyahu and Gallant in Gaza.
It would be absurd to argue that the US has no jurisdiction over crimes committed on US territory by foreigners. Whether it can exercise its jurisdiction may depend on several factors, including whether the suspect is on US territory or the existence of extradition arrangements. However, this is irrelevant to the issue of whether the US has jurisdiction. Viewing the ICC’s jurisdiction analogously with this scenario demonstrates how straightforward this interpretation of ICC jurisdiction is.
More appropriately, by way of amicus submissions to the PTC, the UK and the International Association of Jewish Lawyers and Jurists argued that as under the Oslo Accords, the Palestinian Authority (PA) has no jurisdiction over Israelis on its territory, Palestine is unable to confer such criminal jurisdiction over Israelis on the ICC. This argument, however, is inherently flawed. As consistently set out by the ICJ in both its 19 July 2024 Advisory Opinion and that in 2004 on the Israeli Wall Construction in the OPT, Palestine has a right to self-determination within its territory and all the sovereign rights attached to that. If Israel’s occupation is illegal and, as held by the ICJ, all states and international organisations are under an obligation not to recognise the situation as legal and not to render assistance in maintaining the occupation, this sovereign right would not be Israel’s to gift, nor would it arise from the Oslo Accords. The sovereign right would remain Palestine’s. The Oslo Accords are bilateral agreements which enables Israel’s temporary exercise of de facto authority in Palestine. Palestine retains de jure jurisdiction over its territory and retains the capacity to confer this on the ICC, arguably irrespective of bilateral agreements limiting its jurisdictional enforcement domestically. Furthermore, international criminal tribunals have consistently found such bilateral amnesty agreements at the domestic level inapplicable with respect to their exercise of international criminal jurisdiction. It is inconsistent with the ICC’s impunity ending objective and, in any event, such a ‘special agreement’ between an occupying power and an occupied territory must be read consistently with Articles 7, 8 and 47 of the Fourth Geneva Convention (GC), which prohibits agreements which deprive or denies ‘protected person’ their rights under the GCs.
From Washington to London and across many European capitals, there was a near universal adoption of the Israeli government’s argument that the OTP’s investigation and application amounts to drawing a false moral equivalence between terrorists and democratically elected leaders. Some argue that the ICC was set up to prosecute despots such as African dictators and Putin rather than democratic leaders. In my view, this is errant nonsense. The RS requires the exercise of ICC jurisdiction equally over all individuals irrespective of status or political allegiances, alleged to have committed the most serious RS crimes (Articles 1 and 21(3)). All are bound by international criminal law (ICL) and international humanitarian law (IHL). Advancing such double standards diminishes the credibility of states such as Israel and the US peddling this, erodes the ICC’s legitimacy and credibility, and makes a mockery of the rules-based international order.
Far from establishing a moral equivalence, the Prosecutor is required under Articles 54RS to extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the statute and, investigate incriminating and exonerating circumstances equally. He can only pursue the facts and evidence where it leads and pursue cases where there are reasonable grounds to believe that a specific individual has committed a specific crime within the court’s jurisdiction. The fact that there are reasonable grounds to believe that Hamas leaders may have committed crimes against Israelis cannot mean that Israelis may never be found to have committed RS crimes.
While Israel has the right to defend itself, embark on a security operation in response to the Hamas et al attacks, and seek to rescue her hostages in Gaza, any self-defence action remains bound by ICL and IHL, including by the principles of: humanity (dictating that where cases are not covered by IHL treaties, belligerents’ conduct remain regulated by the principles of the laws of nations, humanity and public conscience); distinction (prohibiting indiscriminate attacks and use of indiscriminate means and methods of warfare); proportionality (requiring that effects of the means and methods of warfare must not be disproportionate to the military advantage sought); precautions (requiring all feasible precautions to be taken to avoid and minimise incidental loss to civilian life, civilian injuries and damage to civilian objects); and military necessity (permitting only measures which are necessary to accomplish legitimate military purposes, not otherwise prohibited by IHL). Therefore, no party to an armed conflict (regardless of how virtuous or legitimate its aim, nor how democratic) has the freedom to do whatever it likes in pursuit of its legitimate aim.
Thus, moral equivalence, in my view, is irrelevant. The question is whether there are reasonable grounds to believe that each individual sought (regardless of nationality) has committed the alleged crimes within the court’s jurisdiction. That is a matter for the PTC to determine when it assess under Articles 57 and 58RS whether to issue the warrants. The applicable test at this stage is a lower one. The OTP satisfying the court that these warrants should be issued does not mean that it will successfully prove each allegation beyond a reasonable doubt. That is a matter for trial and each suspect (if the PTC confirms the charges) will have the right not only to a vigorous defence but must be presumed innocent until proven otherwise.
Part 2 will address the arguments of: bias and antisemitism; failure of complementarity; immunities; and the potential impact of the OTP’s warrant applications on achieving peace.
The views expressed here are the author's alone and not on behalf of any organisation.
James Onalaja practises in domestic and international criminal law, human rights and regulatory law from 187 Chambers, Temple. He is appointed to the Lists of Counsel at the International Criminal Court and Kosovo Specialist Chambers to represent defendants and victims. He is a member of the International Criminal Court Bar Association’s Legal Advisory Committee and has recently completed a posting in The Hague assisting the ICC’s Office of Public Counsel for the Defence.
Karim Khan KC, the Prosecutor of the International Criminal Court (ICC) announced on 20 May 2024 that his Office of the Prosecutor (OTP) was applying to the ICC Pre-Trial Chamber (PTC) for arrest warrants for Hamas leaders: Yaha Sinwa (Gaza Head); Mohammed Deif Al-Marsi (Al-Qassam Brigades’ Commander-in-Chief) and Ismail Haniyeh (Political Bureau Head). According to OTP, the evidence collated provides reasonable grounds to believe that they bore responsibility for war crimes and crimes against humanity (CAH) committed both on Israeli and Palestinian territories since 7 October 2023 i.e. CAH of extermination, murder, and in the context of captivity: rape and sexual violence, torture, other inhumane acts and, war crimes including taking hostages, and in captivity context: cruel treatment, and outrages upon personal dignity, all contrary to Articles 7 and 8 Rome Statute (RS). OTP views all three as criminally responsible for planning and instigating the 7 October attacks and for the 245 hostages taken, and have allegedly acknowledged responsibility for these crimes through their actions. Reports suggest that the latter two Hamas leaders sought may have been killed by Israeli security forces.
Additionally, Khan announced his seeking of arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. According to OTP, the evidence analysed provides reasonable grounds to believe that both bore responsibility for war crimes and CAH, committed in Gaza from at least 8 October 2023. This includes wilfully causing great suffering or serious injury to body or health; wilful killing or murder; intentionally directing attacks against civilian population; extermination and/or murder including in the context of deaths by starvation, persecution and other inhumane acts.
According to OTP, the analysed evidence shows Israeli forces intentionally and systematically deprived Gaza’s civilians of objects indispensable to survival, by imposing a total siege over Gaza for extended periods since 8 October and thereafter arbitrarily restricting transfer of essential supplies, alongside attacks on civilians, including those queuing for food, obstructing aid deliveries, attacks on and killing aid workers thus forcing them to limit or cease operations. OTP alleges that these acts were committed as part of a common plan using starvation as a method of war and other acts of violence against Gaza’s civilians, as a means to eliminate Hamas, secure the hostages’ return and collectively punish Gaza’s civilians.
Khan seeks to charge both Hamas and Israeli leaders respectively as co-perpetrators and superiors under Articles 25 and 28RS. They are said to have respectively committed the alleged crimes jointly with their combatants or through them. Alternatively, they were: in positions of effective command and control over the principal perpetrators; knew or should have known perpetrators were committing or were about to commit the alleged crimes and; failed to take all necessary and reasonable measures within their powers to prevent or repress these offences or submit cases to competent authorities for investigation and prosecution.
Limited criticism is levelled at OTP for seeking the Hamas leaders’ arrest. The only criticism from within the Israeli government was that OTP waited over seven months before seeking their arrest, failing to take into account the fact that: this was one of the fastest arrest requests by OTP in any conflict known to the public; no criminal case (especially one as complex during ongoing conflict) can be brought simply on allegations made by others without first investigating, collating, recording and analysing the evidence and making decisions on the: most appropriate individuals bearing the highest criminal responsibility; appropriate offences and; modes of liabilities to charge; and further, Israel’s apparent lack of cooperation with the OTP investigation and refusal to allow OTP access to Gaza.
Arguably, there is little dispute that the publicly available evidence from both multimedia and eyewitness evidence from the six attack locations across southern Israel (including the Supernova music festival) provides more than reasonable evidence pointing to a widespread and systematic attack against the Israeli civilian population. Furthermore, considering the ongoing Gaza hostage situation which the Hamas leaders are alleged to have claimed responsibility for, there are arguable grounds to request the said Hamas arrest warrants based on an alleged common plan involving the commission of war crimes and CAH.
With respect to the warrant request for the Israeli leaders, there has been a barrage of criticism from a wide cross-section of states with perceived respect for the rule of law and the international rules-based order, culminating in the US House of Representatives voting to re-impose sanctions on individuals involved in ICC prosecutions of US citizens and of allies such as Israel.
An early criticism came from UK’s then Foreign Secretary, Lord Cameron on 21 May 2024. Apparently ‘because Israel is not a signatory to the Rome Statute and Palestine is not yet recognised as a State we don’t think the Court has jurisdiction…’. This is inaccurate for several reasons.
Firstly, as of April 2022, 138 of the 193 United Nations (UN) member states recognised Palestine as a State. In 2012, the UN General Assembly (UNGA) passed resolution 67/19 of December 2012 affording Palestine ‘a non-member observer State’ status, carried by 138 states. Furthermore, on 9 May 2024, 143 UN member states voted in favour of Resolution on Admission of New Members, which determined that ‘the State of Palestine is qualified for membership in the [UN] in accordance with Article 4 of the Charter [i.e. full membership] and should therefore be admitted to membership in the [UN]’. Cameron was wrong to claim that Palestine is not recognised as a State. That UK does not recognise Palestine as a State (if Cameron meant that) is irrelevant to ICC’s jurisdiction in this matter.
As the PTC found in its 5 February 2021 Palestine Jurisdiction Decision, adopting UNGA Resolution 67/19 provided Palestine with the status to ‘become party to any treaties that are open to “any State” or “all States” deposited with the [UN] Secretary- General’. This enabled Palestine to deposit an instrument of accession with the UN Secretary General (UNSG) on 2 January 2015, consistently with Article 125(3)RS, which was accepted by him. Thus, Palestine became an RS party on 1 April 2015, when the statute came into force in Palestinian territory, an event marked with a welcome by the RS Assembly of States Parties (ASP) President. The PTC observed that regardless of objections subsequently being raised by some states, during Palestine’s accession, this was unchallenged before the ASP. Once conditions of accession pursuant to Article 125 RS are fulfilled, the effect is that the RS automatically enters into force for the new State party including Palestine, regardless of its status under general international law (paras 98-112).
The PTC reiterated that disputed borders have never prevented states from becoming State parties. It found that in accordance with Resolution 67/19 reaffirming the right of the Palestinian people to self-determination and independence on Palestinian territory occupied since 1967, and other similarly worded resolutions including UNGA 66/146 of 19 December 2011 stressing ‘the need for respect for and preservation of the territorial unity, continuity and integrity of all Occupied Palestinian Territory including East Jerusalem’ (OPT) and a host of UNSC Resolutions including UNSC/Res/242 of 22 November 1967 which clarified that Israel’s fulfilment of UN Chapter principles includes withdrawal from territories recently occupied and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area, and UNSC RES/449(1979) which ‘calls once more upon Israel … to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967’, the PTC firmly concluded that ICC’s territorial jurisdiction extends to ‘territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem’ (paras 115-118).
While jurisdiction may be subject to further litigation (if the warrants are issued) as part of the Article 19(2)RS procedure challenging jurisdiction and admissibility, considering the recent developments set out above and the International Court of Justice’s (ICJ) 19 July 2024 Advisory Opinion to the UNGA on the Legal Consequences of Israel’s Practices in the OPT, reasserting the Palestinian right to self-determination and the illegality of Israel’s occupation of Palestinian territories dating back to 1967, it is highly unlikely that the ICC will conclude that it has no jurisdiction in this situation.
President Biden parroted Cameron’s other point above that ICC has no jurisdiction because Israel was not a RS State Party. However, as observed by the PTC in its jurisdiction decision, in accordance with Article 12(2)RS, the ICC may exercise jurisdiction either where the State on whose territory the alleged conduct occurred is a party or the State of the accused is a party (paras 89-90). It follows that ICC has jurisdiction over alleged RS crimes perpetrated on Palestinian territory by whomever irrespective of nationality, including Israelis, and over crimes allegedly perpetrated by Palestinians on other states’ territories including Israeli territory. As a result, the court has jurisdiction over acts allegedly perpetrated by Palestinian Hamas leaders both on Israeli territory and in Gaza, and allegedly perpetrated by Israelis including Netanyahu and Gallant in Gaza.
It would be absurd to argue that the US has no jurisdiction over crimes committed on US territory by foreigners. Whether it can exercise its jurisdiction may depend on several factors, including whether the suspect is on US territory or the existence of extradition arrangements. However, this is irrelevant to the issue of whether the US has jurisdiction. Viewing the ICC’s jurisdiction analogously with this scenario demonstrates how straightforward this interpretation of ICC jurisdiction is.
More appropriately, by way of amicus submissions to the PTC, the UK and the International Association of Jewish Lawyers and Jurists argued that as under the Oslo Accords, the Palestinian Authority (PA) has no jurisdiction over Israelis on its territory, Palestine is unable to confer such criminal jurisdiction over Israelis on the ICC. This argument, however, is inherently flawed. As consistently set out by the ICJ in both its 19 July 2024 Advisory Opinion and that in 2004 on the Israeli Wall Construction in the OPT, Palestine has a right to self-determination within its territory and all the sovereign rights attached to that. If Israel’s occupation is illegal and, as held by the ICJ, all states and international organisations are under an obligation not to recognise the situation as legal and not to render assistance in maintaining the occupation, this sovereign right would not be Israel’s to gift, nor would it arise from the Oslo Accords. The sovereign right would remain Palestine’s. The Oslo Accords are bilateral agreements which enables Israel’s temporary exercise of de facto authority in Palestine. Palestine retains de jure jurisdiction over its territory and retains the capacity to confer this on the ICC, arguably irrespective of bilateral agreements limiting its jurisdictional enforcement domestically. Furthermore, international criminal tribunals have consistently found such bilateral amnesty agreements at the domestic level inapplicable with respect to their exercise of international criminal jurisdiction. It is inconsistent with the ICC’s impunity ending objective and, in any event, such a ‘special agreement’ between an occupying power and an occupied territory must be read consistently with Articles 7, 8 and 47 of the Fourth Geneva Convention (GC), which prohibits agreements which deprive or denies ‘protected person’ their rights under the GCs.
From Washington to London and across many European capitals, there was a near universal adoption of the Israeli government’s argument that the OTP’s investigation and application amounts to drawing a false moral equivalence between terrorists and democratically elected leaders. Some argue that the ICC was set up to prosecute despots such as African dictators and Putin rather than democratic leaders. In my view, this is errant nonsense. The RS requires the exercise of ICC jurisdiction equally over all individuals irrespective of status or political allegiances, alleged to have committed the most serious RS crimes (Articles 1 and 21(3)). All are bound by international criminal law (ICL) and international humanitarian law (IHL). Advancing such double standards diminishes the credibility of states such as Israel and the US peddling this, erodes the ICC’s legitimacy and credibility, and makes a mockery of the rules-based international order.
Far from establishing a moral equivalence, the Prosecutor is required under Articles 54RS to extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the statute and, investigate incriminating and exonerating circumstances equally. He can only pursue the facts and evidence where it leads and pursue cases where there are reasonable grounds to believe that a specific individual has committed a specific crime within the court’s jurisdiction. The fact that there are reasonable grounds to believe that Hamas leaders may have committed crimes against Israelis cannot mean that Israelis may never be found to have committed RS crimes.
While Israel has the right to defend itself, embark on a security operation in response to the Hamas et al attacks, and seek to rescue her hostages in Gaza, any self-defence action remains bound by ICL and IHL, including by the principles of: humanity (dictating that where cases are not covered by IHL treaties, belligerents’ conduct remain regulated by the principles of the laws of nations, humanity and public conscience); distinction (prohibiting indiscriminate attacks and use of indiscriminate means and methods of warfare); proportionality (requiring that effects of the means and methods of warfare must not be disproportionate to the military advantage sought); precautions (requiring all feasible precautions to be taken to avoid and minimise incidental loss to civilian life, civilian injuries and damage to civilian objects); and military necessity (permitting only measures which are necessary to accomplish legitimate military purposes, not otherwise prohibited by IHL). Therefore, no party to an armed conflict (regardless of how virtuous or legitimate its aim, nor how democratic) has the freedom to do whatever it likes in pursuit of its legitimate aim.
Thus, moral equivalence, in my view, is irrelevant. The question is whether there are reasonable grounds to believe that each individual sought (regardless of nationality) has committed the alleged crimes within the court’s jurisdiction. That is a matter for the PTC to determine when it assess under Articles 57 and 58RS whether to issue the warrants. The applicable test at this stage is a lower one. The OTP satisfying the court that these warrants should be issued does not mean that it will successfully prove each allegation beyond a reasonable doubt. That is a matter for trial and each suspect (if the PTC confirms the charges) will have the right not only to a vigorous defence but must be presumed innocent until proven otherwise.
Part 2 will address the arguments of: bias and antisemitism; failure of complementarity; immunities; and the potential impact of the OTP’s warrant applications on achieving peace.
The views expressed here are the author's alone and not on behalf of any organisation.
In a two-part opinion series, James Onalaja considers the International Criminal Court Prosecutor’s requests for arrest warrants in the controversial Israel-Palestine situation
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