The ICC arrest warrants: How did we get here – and where do we go now?

On 5 February 2021 the Court’s Pre-Trial Chamber 1 ruled by a majority of 2-1 that the Court had jurisdiction in respect of conduct in Gaza and the West Bank. As the Presiding Judge Kovacs pointed out in his dissenting judgment, the majority ruling was based on a misquotation of the key provision of the Rome Statute, the Court’s founding document, which determines its jurisdiction.

Article 12(2), the provision in question, states that the Court has jurisdiction over crimes on the territory, or by nationals, of States that are parties to the Rome Statute or have accepted the Court’s jurisdiction. By omitting some of the words of this provision, the majority Judges edited out the requirement for a “State”, enabling them to conclude that the ICC has jurisdiction over the territory of “Palestine” without deciding whether it is actually a State.

The majority Judges must surely have seen Judge Kovacs’ dissenting Judgment before the Judgments were published, yet they persisted in relying on this false basis. Judge Kovacs commented: “I find neither the Majority’s approach nor its reasoning appropriate in answering the question before this Chamber, and in my view, they have no legal basis in the Rome Statute, and even less so, in public international law”.

The majority ruling was also based on a further false premise that “The United Nations Secretary-General circulated Palestine’s instrument of accession [to the Rome Statute] among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time.” The majority evidently thought that the States Parties had thereby accepted Palestine as a State Party. However, the premise was not true.

As I elicited from the UN Secretary General’s office, the UK Foreign Office and the Court’s Registrar shortly after the ruling, no instrument of any purported accession by Palestine to the Rome Statute has been circulated to the States Parties at any time, whether before or after the UN Secretary General purported to accept it. The UN Secretary General merely informed the States Parties on Tuesday, 6 January 2015 that Palestine’s accession had (allegedly) been effected on Friday, 2 January 2015.

The majority ruling of 5 February 2021 expressly stated “the Chamber’s conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the [ICC’s] Prosecutor …. When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time”.

Yet following the Prosecutor’s application for arrest warrants earlier this year, the Pre-Trial Chamber has ignored all submissions disputing the Court’s jurisdiction, including those drawing attention to the false premises of its previous ruling, which the Pre-Trial Chamber now describes as “res judicata” (finally decided).

(ii) Presumed innocent until proven guilty, except Israelis

The Rome Statute rightly endorses in its Article 66 the fundamental principles that everyone is presumed innocent until proven guilty, that the onus is on the Prosecutor to prove guilt, and that to convict, the Court must be convinced beyond reasonable doubt.

On 29 October 2023, the Prosecutor, Karim Khan KC, visited the Rafah crossing and presumably noticed that it was between Egypt and the Gaza Strip. Following this, he made a speech in Cairo. He referred to the atrocities of 7 October and rightly stated twice that, if proven, they were serious violations of international humanitarian law. But he went on to say, also twice, that Israelis “will need to demonstrate” that any attack that harmed civilians complied with the laws and customs of war. He then added that if any civilian building is targeted by Israelis “the burden of proving that the protected status is lost rests with those who fire the gun, the missile, or the rocket in question”.

In fact, the war crime of targeting civilian objects defined in Article 8(2)(b)(ii) of the Rome Statute requires not only that the object of the attack is not a military objective but also an intention to attack an object that is not a military objective, both of which must be proved beyond reasonable doubt. However, it appears that in the Prosecutor’s mind, Israelis are presumed guilty unless they prove themselves innocent.

(iii) Willingness to engage

Following a visit to Israel in early December 2023, the Prosecutor stated “I also stand ready to engage with relevant national authorities in line with the principle of complementarity at the heart of the Rome Statute.”

Indeed, one of the fundamental principles of the Rome Statute is that the ICC complements national criminal jurisdictions, rather than displacing them, and only addresses cases that national jurisdictions are unable or unwilling to address genuinely themselves.

Whether gullibly or sceptically, the Israeli authorities took the Prosecutor up on his expressed readiness to engage. A further visit to Israel of the Prosecutor and his team was scheduled to start on 27 May 2024. Officials of the ICC and Israel were scheduled to meet in Jerusalem on 20 May 2024 to work out final details of the mission. But on 20 May 2024, Khan abruptly announced, in a recorded statement in the presence of his senior staff, Brenda Hollis and Andrew Cayley KC, that he was filing applications for arrest warrants. The meetings in Israel were cancelled without notice.

According to his public statement of 20 May 2024, the Prosecutor relied on reports of famine in the North of the Gaza Strip published on 18 March 2024. Those reports were seriously erroneous, and Israeli officials and leading experts were preparing responses to demonstrate the inaccuracies. Naturally, they wanted to make sure that everything they stated was correct, but had they known that the Prosecutor was about to apply for arrest warrants without engaging further, they would presumably have hastened to publish analyses earlier.

Following the Prosecutor’s announcement, the Israeli experts released a Working Paper on 24 May 2024 and the Israeli Ministry of Foreign Affairs published a separate critique on 20 May 2024. Commentaries of a number of bloggers also exposed the deficiencies of the March reports. On 4 June 2024 the Famine Review Committee published a review which concluded that the March reports were indeed “implausible” and had overlooked or ignored a substantial part of the food resources transferred to the North of the Gaza Strip. UK Lawyers for Israel (UKLFI) has published a review of the various famine reports and allegations.

If the Israeli officials had not been led to believe that the Prosecutor would hear their response before making any application for arrest warrants, it is likely that the March reports would have been debunked before the Prosecutor applied on 20 May 2024. In that case, the applications would have had to be abandoned or significantly changed, or their falsity would have been even more obvious.

In the event, the Prosecutor filed his applications for arrest warrants without Israel’s response or, it seems, any exonerating material. He then refused to update the applications to include any new material contradicting the material he had filed, seemingly contrary to obligations under ICC rules. It now appears that the Pre-Trial Chamber has accepted the Prosecutor’s submission that it should only consider the material he filed on 20 May 2024, thereby securing the success of the deception described above.

(iv) The falsity of the Prosecutor’s allegations

The applications for arrest warrants and the supporting evidence have not been published, but the Prosecutor’s statement of 20 May 2024 set out the allegations in some detail. The allegations are in essence that, under the leadership of Netanyahu and Gallant, Israel intentionally used starvation of civilians as a method of warfare.

UKLFI has shown in a detailed letter to the Prosecutor that every phrase of every sentence of these allegations is false. It is not possible to cover every falsity in this article, but an example may assist. Khan alleged that Israel imposed “a total siege over Gaza, that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods”.

As Khan well knew, the Rafah crossing is between the Gaza Strip and Egypt. Egyptian forces have remained in control of the Egyptian side of the crossing at all times since 8 October 2023. When Egypt is unwilling to allow goods through the Rafah crossing, Israel cannot force it to do so, short of starting a war with Egypt. Israeli forces were not present on either side of the Rafah crossing prior to 7 May 2024, but took control of the Gaza Strip side on that date and have remained in control of that side of the crossing since then.

The Rafah crossing was open on 8 October 2023 but closed by Egypt (not Israel) from 9 -20 October 2023. It was reopened for humanitarian supplies on 21 October 2023 and remained open until 6 May 2024. During this 200-day period trucks were transferred from Israel to the Egyptian side of the crossing all days except most Saturdays plus 12 other days. COGAT, the relevant Israeli department, has published a manifest detailing these transfers.

The Rafah crossing has been closed by Egypt since 7 May 2024, despite Israel’s requests to open it and willingness to keep it open on the Gaza Strip side. No arrest warrants have been sought by the Prosecutor against any Egyptian officials.

The Kerem Shalom crossing was closed by Israel following the attacks on 7 October 2023. It was reopened for transfer of goods into the Gaza Strip on 17 December 2023. During the 167-day period between then and the end of May 2024, truckloads inspected at Kerem Shalom were transferred through this crossing or an additional entry point, called Gate 96, on all days except most Saturdays and 19 other days.

The Erez crossing was for pedestrians only prior to 7 October 2023. This crossing was seriously damaged in the Hamas attack on that date. Israel repaired it and added an adjacent goods crossing and a further goods crossing nearby, which opened on 1 and 12 May 2024.

Israel also facilitated air-drops and encouraged the US to build a floating pier to transfer supplies directly into Gaza City. Although, due to stormy weather, the pier was not as successful as hoped, the efforts made in themselves contradict the allegation that a total siege was imposed with the intention of depriving the civilian population of objects indispensable to human survival.

The information summarised above and fully substantiated in UKLFI’s letter is completely inconsistent with Khan’s public statement. Israel did not impose a “total siege over Gaza … from 8 October 2023”. Nor was there a complete closure by Israel of the three crossing points mentioned by Khan for extended periods. Apart from the fairly short period from 9-20 October 2023, at least one of the crossings has been open on most dates since then, and two or more of the crossings have been open on most dates since 17 December 2023.

Furthermore, the closures of the Rafah crossing from 9-20 October 2023 and since 7 May 2024 were imposed by Egypt, not Israel. And the closure of the Erez crossing for goods until 1 May 2024 was not imposed by Israel; it existed because the terminal was not equipped for goods and had been heavily damaged in the Hamas attack of 7 October 2023.

The Prosecutor did not reply to UKLFI’s letter, refused to provide any further information to the Pre-Trial Chamber and submitted (apparently successfully) that the Pre-Trial Chamber should ignore all observations and information provided to it by anyone other than the Prosecutor.

Where do we go from here?

(i) Should the arrest warrants be enforced?

The International Criminal Court Act 2001 provides for the enforcement in the UK of arrest warrants issued by the ICC. It does not contain any provision for UK courts or officials to review the justification for the warrants. However, it can be argued that the (purported) arrest warrants against Netanyahu and Gallant should be treated as nullities or that they are not “warrants of arrest” within the meaning of the UK Act, because the ICC has no jurisdiction. This view would be in line with the classic Anisminic decision or the more recent Miller case.

In any event, ICC arrest warrants do not override diplomatic immunity of nationals of States that are not parties to the Rome Statute (such as Israel), unless they are issued in a situation referred to the ICC by the UN Security Council (as in the Al-Bashir case, but not the current Gaza war). This appears to be the correct position under both the Rome Statute and the UK legislation. As matters stand, Netanyahu would benefit from this immunity, but not Gallant, since he is no longer the Defence Minister.

The majority judgment of the ICC’s Appeal Chamber in the Al-Bashir case does say that ICC arrest warrants must be implemented by parties to the Rome Statute against nationals of States that are not parties, even where they have diplomatic immunity and even in the absence of a referral by the UNSC. However, this was unnecessary, since that situation had been referred to the ICC by the UNSC, and the reasoning of the judgment has been criticised by many international lawyers.

There is no UK statutory provision conferring supremacy on rulings by the ICC. UK officials and courts should not follow them when they are wrong, particularly where this would contravene UK law and the UK’s other international obligations (as it would, if diplomatic immunity of Israelis protected under UK and international law were violated).

(ii) Further arrest warrants

The Prosecutor has lost no time in stating that his office is pursuing additional lines of inquiry in relation to Gaza and the West Bank, including East Jerusalem. Normally arrest warrants are issued by the ICC in secret. A considerable number of Israelis who have been involved in the current war or in other conduct could potentially be arrested under secret warrants on arrival in other countries, and then imprisoned potentially for years pending trial, even if they are eventually acquitted. Given the falsity of the allegations on which the warrants for the arrest of Netanyahu and Gallant are based, innocence of wrongdoing would not exclude this risk.

(iii) US sanctions

In his previous administration, President Trump made an Order enabling sanctions to be imposed on any foreign person who has (i) directly engaged in any effort by the ICC to investigate, arrest, detain or prosecute any personnel of the US or any US ally, or (ii) materially assisted, sponsored or provided financial, material or technological support for, or goods or services to or in support of any such effort.

The specified sanctions were (a) freezing all property of the subject in the US or in the possession or control of a US person and (b) prohibiting entry into the US of the subject or his immediate family members.

The Order was challenged in the US courts and revoked by President Biden. A Bill, diplomatically titled the “Illegitimate Court Counteraction Act”, with similar provisions to Trump’s Order, was passed by the House of Representatives on 4 June this year, but has since been stalled in the Senate, which remains controlled by the Democratic party until 3 January 2025.

However, the Republican party will soon have control of the US Presidency (from 20 January 2025), as well as the Senate and House of Representatives, and a generally sympathetic Supreme Court. Leading Republican politicians have expressed their intention to reintroduce and expand sanctions targeting those who help the ICC against US allies.

Such sanctions may target national officials and leaders as well as ICC personnel. The imposition of sanctions on European leaders could well result in a breakdown of diplomatic relations between the US and these countries.

Economic sanctions could also be imposed by the US. It has been reported that Senator Lindsey Graham warned the British Prime Minister, Sir Keir Starmer, that the US will crush the UK economy if Britain helps to arrest Netanyahu.

But withdrawal of US military support could be even more serious for European countries bordering Russia. US politicians putting “America First” might well consider it unreasonable to deploy US servicemen in aid of States that support an institution that could arrest and incarcerate those same servicemen on the basis of false allegations of war crimes.

Perhaps the biggest beneficiary is Vladimir Putin – and he really is a war criminal.

Jonathan D. C. Turner is Chief Executive of UK Lawyers for Israel