On 20 May 2024, the International Criminal Court (ICC) Prosecutor Karim Khan submitted an application to the Pre-trial Chamber to request arrest warrants for Hamas political and military leaders in addition to the Israeli PM Benjamin Netanyahu and Defense Minister Yoav Gallant. UntoldMag interviewed Law Professor Triestino Mariniello who is part of the legal team defending the Gazan victims of Protective Edge (2014), March of Return (2018) and the May 2021 war at the ICC.
Why is the ICC Prosecutor’s application submitted to the judges of the Pre-Trial Chamber to issue arrest warrants against Hamas leaders and Israeli PM and Defense Minister so historically important? What elements differentiate it from other contexts?
The decision of the Prosecutor of the International Criminal Court (ICC) Karim Khan to request arrest warrants against Israeli political leaders and against political military leaders of Hamas, of Palestinian armed groups, are historical for a number of reasons: more than 15 years after the state of Palestine invoked the intervention of the International Criminal Court into Israeli-Palestinian setting, it is the first time that we assist to the adoption of concrete effective measures aiming to put an end to impunity within this context- impunity that has been one of the main causes of the serious violations of international law in this situation, in particular of allegedly international crimes.
It is historical for Palestinian victims because Palestinian victims do not have any alternatives to justice other than the International Criminal Court. They cannot submit any complaints before domestic courts in Israel and Palestine. It is historical for Palestinian civil society organizations because for more than 15 years, they have documented the international crimes committed in their region before the commission and they have cooperated with the International Criminal Court but it’s also historic for the same ICC because finally it shows its ability to withstand political pressures and to request arrest warrants also against leaders from Western powerful countries. In other words, it is different from other contexts as it is the first time ever that an international prosecutor is requesting arrest warrants against leaders of a powerful State, an ally of powerful States, in particular of the US. This does not have any precedent. All previous investigations before the ICC aimed to address the responsibilities of political military leaders of Western States such as in Afghanistan and in Iraq, while avoiding looking into the Palestinian situation.
How probable is it that the judges will issue arrest warrants and how long will it take to implement these charges?
It is difficult to make any prediction. What we know so far is that the requests of the Prosecutor, as they have been presented, appear quite solid. The arguments presented by the Prosecutor are very compelling and at least when it comes to the crimes allegedly committed by Israeli leaders, we are talking of crimes, war crimes, and crimes against humanity, already widely documented by international organization bodies. I am thinking in particular about war crimes of intentionally attacking the civilian population, for instance, of starvation of the civilian population, which has already been widely documented by international organizations and bodies. We haven’t seen the evidence as it is confidential to the Prosecutor. From a legal perspective, there is a very high possibility that the requests of the prosecutor will be accepted as they stand.
Why do you think that genocide was not included in the charges of both parts? Can it be determined later during the investigation which is still active?
From a legal perspective, I find it in difficult to see that genocide was allegedly committed in relation to the 7 October attack. This is not meant to undermine the seriousness of the attacks nor to diminish the responsibility of the perpetrators. Regarding specifically the 7 October attack, the Prosecutor is opening an investigation for both war crimes and crimes against humanity. Therefore the Court will have the possibility to shed light and ascertain responsibility in this specific situation. At the same time, it has been widely discussed and documented that plausible genocide is taking place in the Gaza Strip. I think that the reason why it is not included in the charges is because the Prosecutor, as he told CNN, wants to focus on crimes that he deems have a realistic prospect of conviction: he thus wants to start with the strongest cases that he can bring before the ICC. Judging from his words, it can appear that the genocide charge at this stage will not be as solid as the other crimes he is raising before the pre-trials chamber. But this does not mean that charges for genocide cannot be brought at a later stage. This applies also to other war crimes and crimes against humanity, in particular if in the next months or years the International Court of Justice will reach the conclusion that genocide is being committed in Israel.
And why do you think the ICC Prosecutor does not mention the historical context of the military occupation in the charges? And why should he or not?
First of all, we should have a look at what he has submitted to the pre-trial chamber. What we have so far are public statements by him or by an independent panel of experts that assisted him and this team. Therefore I do not know what is included and what is not. We can speculate that the historical context is not included at least in the statement because it is not strictly relevant to the elements of the crimes he is bringing to the attention of the pre-trial chamber. It is then not relevant in relation to war crimes. Only in relation to crimes against humanity does the context become relevant. In this case, the context is the context of widespread and systematic attacks against the civilian population in Gaza, but I saw that the Prosecutor was also mentioning in the interview the siege of Gaza, the blockade of Gaza which has been ongoing for 17 years. So while the historical context is not explicitly mentioned in the public documents, there is nonetheless an emphasis on the context in Gaza and the imposed blockade and this is particularly important when it comes to crimes against humanity. I always maintain that it is important for crimes against humanity to be included in this list of crimes mainly for this reason: because by doing so, the Prosecutor recognized the context in which these are taking place. Even if the Court does not have jurisdiction to take into account the facts or crimes unfolding before 2015 ,we can still hold that what has happened before June 2014 is relevant to understand the current situation.
The ICC’s legacy is based on the Nuremberg trials, i.e. the Shoah or Holocaust. But many consider these arrest warrants of Israeli leaders as antisemitic.
Well, to be honest, the International Criminal Court has been subjected to attacks in particular by Israeli authorities every time there was a rumor that an investigation was going to be opened against Israeli leaders. So there are precedents for that. When the previous ICC Prosecutor Fatou Bensouda was concluding the preliminary examination in December 2019, and she said that she found evidence that war crimes had been committed by Israelis during ‘Protective Edge’, the military operation in Gaza in 2014, in relation to the March of Return in 2018 and in relation to the settlements. The then Prosecutor was subjected to severe attacks by Prime Minister Netanyahu who accused her of being antisemitic.
The Trump Administration followed the lead, not only attacking the Prosecutor but also issuing some so-called executive orders imposing sanctions on the Prosecutor. Now the Israeli government is doing the same: attacking the Prosecutor and the Court, applying the paradigm of antisemitism. These accusations are of course completely unfounded. It is the other way around: for the first time, the Prosecutor is showing the independence and impartiality of his office, of the Court conducting investigation. There is no justification for these crimes. Prime Minister Netanyahu emphasized that Israel is a democracy when he labeled the Prosecutor as antisemitic . Without delving into the definition of democracy what I will say is that under the set of the ICC, being a democratically elected leader does not constitute the ground for exclusion from various responsibilities. he fact that you are democratically elected does not exempt the commission from pursuing you for alleged war crimes, crimes against humanity or genocide.
Why aren’t US, Israel, Russia, China State Parties of the ICC? What does it imply in this case?
They are not part of the ICC for political, not legal reasons, because they do not accept a limitation on their national sovereignty in criminal justice affairs. This means that they do not recognize the intervention of the supranational institution into their domestic affairs. We have to remember that criminal law is the biggest expression of national sovereignty and it is always difficult for states, in particular for powerful states, to accept a limitation when it comes to this great form of expression of national identity and national sovereignty.
How can this have an impact on the current situation? These states do not have any legal obligation to cooperate with the International Criminal Court. They do not have any obligation for instance to transfer evidence that they might have in relation to the alleged commission of crimes. It means that they do not have any obligation to arrest the suspects if arrest warrants have to be issued and to extradite them to the Hague. They could do it, but it would be more of a political discretion rather than a legal obligation. Of course, this does not apply to the state parties that have a legal obligation since they have ratified the Rome Statute of the International Criminal Court. I would also add that the fact that the non-signatories States do not have the legal obligation to cooperate with the court does not mean that they can do whatever they want.They cannot threaten the ICC and they cannot obstruct justice. In the past few weeks, we have assisted in threats and very serious warnings for instance by US senators sending a letter to the office of the Prosecutor in which they were clearly threatening the Prosecutor and saying that this stood as a warning should he pursue arrest warrants against Israeli leaders. This is clearly not part of political discretion and goes beyond the red line. The red line here is that this may amount to crimes under the Rome Statute, in particular under article 70 of the Rome Statute which states that intimidating ICC officials in order to persuade them to take a decision may constitute a crime and so the individuals who exert these pressures could be tried tried before the International Criminal Court.
The threats the ICC Prosecutor received did not prevent him from working on the evidence and continuing the investigation. Do these threats have precedents? What are the legal consequences?
I will answer first in relation to the precedents. As I mentioned before, there are significant precedents coming again from the US and Israel. The attacks by Netanyahu are not new. It had already occurred in the past and the strongest attacks to the International Criminal Court came from the Trump Administration. Former president Trump adopted so-called executive orders – in the US, an executive order is part of the emergency power since it bypasses the normal procedure for the adoption of legislative acts. The US President thus imposed financial sanctions and restriction of movement of the former Prosecutor and her staff. It was completely unprecedented because generally the executive orders are used by US authorities against perpetrators of international crimes, perpetrators of serious violation of human rights law, and international drug trafficking. It was the first time that it was used against an international institution, which has the mandate to apply the rule of law. Today, in the US, they are discussing once again the possibility of adopting these sanctions.
We have talked of threats. I want to emphasize that there have also been some very concerning criticisms from State parties towards the International Criminal Court. I’m referring in particular to the United Kingdom, Austria, the Czech Republic, Italy, and Germany albeit in a different way. For instance, the UK government’s reaction appeared particularly concerning in its intervention at the ICC. This comes from a state party to the ICC which has, in contrast to the US, a legal obligation to cooperate whether it agrees to the investigation or not. This is not a political discretion. The signatory states must cooperate. This is particularly worrying as these are countries that have generally fully supported the ICC and that fully supported the ICC in other situations, in particular, when it came to the Ukraine case. The problem is again putting in place a policy of double standards, which, as we always stress, is the main problem in the Israeli-Palestinian setting. Thus, the condemnation by the British and German governments of the ICC is particularly concerning, especially considering that these are some of the main donors , in addition to being the founders of the ICC. They can really undermine the entire international justice project.
You are part of the legal team defending the victims of Protective Edge (2014), March of Return (2018) and the war in May 2021. What are your next steps? What does this application mean for you?
First of all, of course, as legal representatives of the victims from the Gaza War in 2014, the Great March of Return in 2018 and from the war in May 2021, the expectation of the victims we represent is that the Prosecutor is not going to slow this investigation and will carry it forward in the relatively near future. In other words, we hope that he is going to request arrest warrants in relation to the widely documented war crimes and crimes against humanity as already stated by the former Prosecutor when she opened an investigation- and this, as soon as possible. This is the expectation on behalf of the victims and again because they do not have any alternatives to Justice, our role now will be to first wait for the Pre-Trial Chamber decision. If arrest warrants are going to be issued, from the ICC perspective, that means that cases are starting and if cases are starting, we will have the possibility to submit victims applications, i.e. applications on behalf of victims of the crimes that the Prosecutor is mentioning in his request. We will start doing so in order to have them officially recognized as victims before the ICC, so that they can take part at the proceedings, at the portrayal phase and potentially at the trial stage. Under the Rome Statute, taking part in the proceeding means that we will be in the position then to act on their behalf, thereby expressing their views and concerns. If the judges enable us, we can submit evidence, we can interview witnesses, we can submit preliminary and concluding remarks during the proceedings. For the first time, there is an important role in international criminal justice, for recognized victims to have the possibility to take a direct action at the proceedings by submitting pieces of evidence. Our first step will be this one: bringing the application of victims of the mentioned crimes to the Court as they will be approved by the judges and asking the judges to formally recognize their victim status before the ICC.
How do you read the parallel arrest warrants of both Israeli and Hamas leaders? What does that tell us in terms of the equation of both parties, their respective roles and responsibility in this war? Germany, for example, has welcomed the arrest warrants against Hamas leaders but objected to Israeli leaders being trialed or pursued in the same manner and for similar charges.
This does not belong to Germany’s competence and in fact does not belong to any political body’s competence. That is to say, it does not fall in the competence of any given state. This is the work of the International Criminal Court. Germany has always stressed its respected support in the shadow of the ICC. The same should also happen in relation to the situation in Palestine. Otherwise, the risk is to undermine the Court, and not only this investigation, but the entire international justice project.
From my legal perspective, the office of the Prosecutor has the competence to investigate crimes committed in the Palestinian Territories or by Palestinian Nationals abroad and that is what he is doing. Thus, the attacks of the 7 October and the attacks and crimes committed allegedly on the Palestinian territory of Gaza are within the jurisdiction of the ICC. It would be extremely surprising and unacceptable from a legal perspective if the Prosecutor were to investigate only one side.It would be the final blow to the legitimacy and credibility of these institutions particularly in light of the seriousness of the situation in Gaza and the widely documented international crimes.
Beyond what some states are arguing, the hope is that the office of the Prosecutor will widen the scope of the investigation in relation to the alleged crimes committed by Israeli political and military leaders because other crimes are widely documented and they are not included in this request. I am referring for instance to the forced displacement of two million people in the Gaza Strip which amounts to war crimes and the crime against humanity of possible transfer. I am talking of genocide itself, which has already been found plausible in this case. I am also referring to all the crimes committed for instance against Palestinian prisoners. It is surprising that in this investigation, there is no reference to the widely documented crimes committed against Palestinian prisoners.
And of course, I am also mentioning the crimes committed in the West Bank including East Jerusalem, including those committed by settlers. Why are they not in this list of crimes? It is very surprising considering that they are widely documented. Therefore, in contrast to what Germany or other states say, the surprise here from a legal perspective is not that Israeli leaders are included as subjects to the request for arrest warrants. The surprise here is that there are no other Israeli political and military leaders. I am sure that at least in relation to Israeli leaders, further requests of arrest warrants will come or should come in the near future. In the list of war crimes against Israeli leaders, the prosecutor included the intentional attacks against the civilians in the Gaza Strip. How is it possible that there is no military leader mentioned in the arrest warrants? If there are intentional attacks against civilians then surely military leaders planning and directing to put in place these attacks must be held accountable. Hopefully, as soon as possible, there will be other Israeli political and military leaders subjected to arrest warrants or at least a request thereof.
