NGOs say it would be a ‘disgraceful dereliction of duty’ if the ICC and its prosecutor ignores these crucial observations
August 19, 2024 15:03
The allegations used by the International Criminal Court’s prosecutor to order arrest warrants for Israeli leaders are based on “wholesale inaccuracy”, it has been claimed.
ICC Prosecutor Karim Khan KC asked the body in May to order the arrest of Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant on the alleged grounds that Israel has employed starvation of Palestinian civilians as a method of warfare.
But according to observations filed with the Court by a group of NGOs, “every phrase of every sentence of a statement of the International Criminal Court’s Prosecutor summarising his allegations against Netanyahu and Gallant is untrue”.
The lengthy report – compiled earlier this month by UK Lawyers for Israel (UKLFI), the International Legal Forum (ILF), the Simon Wiesenthal Center (SWC), B’nai B’rith UK (BBUK) and the Jerusalemites Initiative (JI) – rebuts a number of crucial claims laid out by Khan that justify the arrest warrants.
Among the prosecutor’s claims, for example, is that Israel is imposing “a total siege over Gaza that involved completely closing the three crossing points, Rafah, Kerem Shalom and Erez, from October 8 2023 for extended periods.”
The NGOs point out that the Rafah crossing is between the Gaza Strip and Egypt, not Israel, so Israel can’t open it if Egypt insists on closing it, without going to war with Egypt.
They dispute a series of other allegations by the Prosecutor, including a claim that famine is present in some areas of Gaza and imminent in others. The NGOs believe this claim is based on earlier reports that omitted to count a large part of the food and water supplies in Gaza and have since been officially classed as “implausible”.
They also challenge the ICC’s jurisdiction, arguing that ICC intervention is necessary only if national legal systems cannot or will not investigate or deal with alleged crimes. Israel, they point out, has a strong track record of holding officials at the highest levels accountable and the country’s independent Military Advocate General has already initiated 74 criminal investigations into alleged IDF misconduct since October 7.
In their submission, they state: “Instead of engaging with relevant officials in Israel so they could investigate his allegations, the Prosecutor abruptly cancelled a planned visit to Israel and announced that he was filing applications for arrest warrants at the ICC.”
The NGOs say it would be a “disgraceful dereliction of duty” if the Court and the prosecutor ignore the information they have provided and the evidence they have cited, calling into question “the integrity of the Court, its processes and its Prosecutor.”
The NGOs point out that if the Court proceeds on the basis of false information, it would jeopardise the liberty of not only Netanyahu and Gallant, but also other Israelis, against whom arrest warrants could be issued secretly, restricting their ability to travel internationally without fear of arrest.
Jonathan Turner, chief executive of UK Lawyers for Israel, said: “If the International Criminal Court proceeds without properly addressing the points we have made, it will show that it is a successor to the mediaeval disputations and the Spanish Inquisition. It will mark a new stage in the age-old persecution of Jewish people based on false information.”
Arsen Ostrovsky, Chief Executive of International Legal Forum, called the ICC Prosecutor’s decision to seek arrest warrants for the Israeli leaders amounts to a “modern-day antisemitic blood libel that violates every norm of international law.
“It not only entirely lacks substance, but also underscores the court’s blatant lack of jurisdiction in the first instance. If the ICC wishes to maintain any shred of dignity, it will dismiss these legally baseless and mendacious proceedings,” Ostrovsky said.
In response, the ICC pointed out that it was “an independent and impartial judicial institution focused on ensuring accountability for the gravest crimes under international law”.
As Prosecutor Khan had referenced on many occasions –including in his Elie Wiesel Distinguished Lectureship in Human Rights in May last year – the Rome Statute, the treaty that established the court, “stems from all religious traditions, including Judaism,” the court said.
“The Office of the Prosecutor executes its mandate based solely on the evidence and the law, devoid of extraneous considerations. The Office’s actions and decisions are, at all times, strictly guided by the evidence in accordance with the Rome Statute legal framework.”
The ICC confirmed that the Office of Public Counsel for the Defence (OPCD) was due to have submitted observations against the decision by no later than last Friday, with the Office of the Prosecutor to submit a consolidated response no later than next Monday.