Israel and Hamas in International Criminal Court

INTRODUCTION

• The Prosecutor of the International Criminal Court (ICC) has requested arrest warrants for leaders of Hamas and senior Israeli officials in connection with the attacks on Israel on October 7, 2023, and the ensuing conflict in Palestine.

TIMELINE: INTERNATIONAL CRIMINAL COURT ARREST FOR GAZA WAR

• JAN 2015: 

• Palestine joins the ICC

• MAY 2018

• Palestine refers the “situation in Palestine” to the prosecutor for events that happened.

• DEC 2019:

• Prosecutor concludes that an investigation of the situation in Palestine is warranted, but asks the Pre-trial chamber for ruling on the court’s territorial jurisdiction over Palestine, inviting views from all stakeholders.

• FEB 2021

• Pre-trial chamber I rules that the ICC has Jurisdiction over the situation in Palestine, which includes the territory of Gaza and the West Bank, including East Jerusalem.

• MARCH 2021:

• Prosecutor announces opening investigation.

• OCT 7, 2023

• Hamas’s brutal attacks in Israel followed by disproportionate Israeli military operations in Gaza and escalations in regional hostilities.

• NOV 2023

• South Africa, Bangladesh, Bolivia, Comoros, Djibouti and Palestine submits referrals of the situation in Palestine with the Prosecutor.

• JAN 2024:

• Chile and Mexico submit referrals of the situation in Palestine to the Prosecutor.

• MAY 20, 2024:

• Prosecutor announces he is seeking arrest warrants of senior Israeli officials and Hamas leaders.

FUTURE STEPS:

Pre-trial chamber decision on whether to approve warrants. A decision on pre trial chamber can take several months.

CHALLENGES:

• Jurisdictional Issues

• Neither Israel nor Hamas recognizes the jurisdiction of the ICC.

• Israel, like the U.S., is not a member of the ICC, which complicates the enforcement of any arrest warrants issued.

• Political and Diplomatic Resistance

• Strong political resistance from Israel and its allies, particularly the United States

• Enforcement Difficulties:

• Arrest warrants against high-ranking officials, such as Israeli Prime Minister Benjamin Netanyahu, may be challenging to execute.

IMPLICATIONS:

• POSITIVE IMPLICATIONS:

• Accountability and Justice:

• For Victims: The ICC investigation can provide a sense of justice to victims of the conflict, acknowledging their suffering and working towards holding perpetrators accountable.

• Deterrence: Establishing accountability might deter future violations by signalling that impunity will not be tolerated, potentially reducing the frequency and severity of future conflicts.

• Strengthening International Law:

• The ICC’s involvement reinforces the applicability of international humanitarian law and human rights law, even in protracted and politically complex conflicts.

• Diplomatic Engagement:

• Pressure for Peace: The investigation could pressure both parties to engage more seriously in peace negotiations, knowing that continued conflict might lead to further scrutiny and potential prosecutions.

• Support for Palestinian Statehood:

• International Recognition: The investigation implicitly acknowledges Palestine’s status in the international arena, reinforcing its claims for statehood and sovereignty under international law.

• NEGATIVE IMPLICATIONS:

• Political and Diplomatic Tensions:

• Israel-ICC Relations: The investigation has strained Israel's relations with the ICC and countries supporting the court, potentially leading to diplomatic fallout.

• International Division: The investigation may polarise international opinion, leading to divisions among countries supporting Israel and those supporting Palestine.

• Challenges to ICC’s Legitimacy:

• Accusations of Bias: Israel and its allies accuse the ICC of political bias, which could undermine the court’s perceived impartiality and legitimacy.

• Non-Cooperation: Israel's non-cooperation with the investigation can impede the ICC’s ability to gather evidence and prosecute cases effectively.

• Impact on Peace Process:

• Entrenchment of Positions: The investigation might harden the stances of both parties, making compromise and peace negotiations more difficult.

• Domestic Backlash: Political leaders in Israel and the Palestinian territories might face internal pressures, leading to more hardline policies and reduced willingness to engage in dialogue.

• Security Concerns:

• Escalation of Conflict: The investigation could provoke retaliatory actions or escalate tensions, potentially leading to more violence in the short term.

• Hamas' Retaliation: Hamas might use the investigation to justify continued or increased militant activities, arguing that their actions are a form of resistance against Israeli occupation.

WAY FORWARD

• Ensuring Impartiality and Transparency

• Transparent Processes: The ICC should ensure its investigation processes are transparent to mitigate accusations of bias. 

• Regular updates and clear communication about the investigation’s progress can help build trust.

• International Support and Cooperation

• Diplomatic Engagement: 

• Engaging diplomatically with both Israeli and Palestinian authorities, as well as key international stakeholders, can facilitate cooperation and support for the investigation.

• UN Involvement: 

• The United Nations can play a role in supporting the ICC's efforts, potentially through resolutions or diplomatic pressure encouraging cooperation from all parties.

• Jurisdiction Clarification: 

• The ICC should continue to clarify its jurisdiction and legal basis for the investigation, addressing concerns and challenges raised by Israel and its allies.

• Victim and Witness Protection

• Protection Programs: 

• Implementing robust protection programs for victims and witnesses is essential to ensure their safety and willingness to cooperate with the investigation.

• Support Services: 

• Offering psychological and social support to victims and witnesses can help them navigate the challenges of participating in the investigation.

• Promoting Dialogue and Reconciliation

• Conflict Resolution Efforts: 

• Encouraging and supporting broader peace and reconciliation efforts can create a conducive environment for justice and accountability. This might involve mediation, peace talks, and confidence-building measures between Israel and Palestine.

• Grassroots Initiatives: 

• Supporting local peacebuilding and reconciliation initiatives can foster mutual understanding and reduce tensions at the community level.

  
  

• SHORT TAKE

  • INTERNATIONAL CRIMINAL COURT

  • It is a permanent court to prosecute serious international crimes committed by individuals. 

  • It tries crimes such as genocide, war crimes, crimes against humanity, and aggression.

  • It was established to fight global impunity and bring to justice criminals under international law, regardless of their rank or stature.

  • HQ: The Hague, The Netherlands

  • Statute:

  • Before the ICC became functional in 2002, its founding treaty was adopted by the UN General Assembly in 1998 in Rome, Italy, thereby making it the Rome Statute.

  • Membership

  • To become a member of the ICC or State party to the Rome Statute, countries have to sign the statute and ratify it under their respective legislatures. 

  • 124 countries are currently members of the ICC, with African countries making up the largest bloc. 

  • Function:

  • Judges & Prosecutors

  • The court carries out its investigations through the Office of the Prosecutor and has 18 judges. 

  • Both the judges and prosecutors hold non-renewable nine-year terms.

  • Process

  • There are pre-trial, trial, and appellate benches in the ICC. 

  • The prosecutor conducts a preliminary examination in a matter, before seeking permission from pre-trial judges to open a full investigation. 

  • The initial examination must conclude that the crimes in question are of sufficient gravity.

  • Ways to open investigations

  • The prosecutor can open an investigation in three ways: 

  • when a case is referred by a member country in its own territory.

  • when a case is referred by the UN Security Council; and 

  • when the prosecutor takes up a case proprio motu or on his own. 

  • Non-member states can also be investigated in three ways: 

  • if alleged crimes were perpetrated by non-members in member states, 

  • if the non-members accept the court’s jurisdiction, or 

  • when the Security Council authorises it.

CONCLUSION