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This is the final part of a two-part series. Following his analysis of how Israeli war criminals can be held accountable by means of a prosecutor-initiated investigation, ADVOCATE ANWAR ALBERTUS SC probes the issue of the delay by International Criminal Court (ICC) Prosecutor, Karim Khan, in proceeding with the case against Israeli war criminals. Click here for part one.
Israel spuriously contends that it is acting in self-defence. This argument is unsustainable as a matter of law, since it is an occupying force in Palestine and, as such, the Palestinians have every right in terms of international law, to resist their occupation, even by force of arms. However, even if Israel could legitimately rely on self-defence, this cannot avail Israel, since it has clearly breached the principles of distinction and proportionality.
These two principles are peremptory requirements in terms of the Geneva Convention of 1949, to which Israel is a signatory. In its bombing campaign, the IDF evidently made no distinction between combatants and civilians, thus failing to uphold the principle of distinction. Moreover, the magnitude of the death of civilians and the destruction of civilian infrastructure has been grossly disproportionate as a response to the attacks by Hamas on October 7. Accordingly, the IDF has dismally failed to uphold the principle of proportionality.
The data on persons killed on both sides of the conflict is consistent with the disproportionate response of Israel. A total of 1 200 Israelis were killed on October 7, 2023 by Hamas, and approximately 21 000 Palestinian civilians by the IDF, since October 7 to date. It is patent that Israel’s response is grotesquely disproportionate. These breaches of the principles of distinction and proportionality constitute a war crime in terms of the Geneva Convention of 1949 and the Rome Statute.
The sheer weight of the existing evidence (which includes the public utterances by members of Netanyahu’s cabinet of their genocidal intent), heavily implicates Israel in committing the crime of genocide, war crimes and crimes against humanity. With all of this evidence, the question arises as to why the ICC Prosecutor has not as yet issued warrants for the arrest of Netanyahu and his political cohorts for the crime of genocide, crimes against humanity and war crimes.
It is a matter of concern that a complaint has already been lodged in 2014 with the ICC Prosecutor by the Palestinians against Israel. The ICC Prosecutor at the time was Fatou Bensouda and the complaint involved the atrocities committed by Israel at the time in its war on Gaza called Operation Protective Edge. On March 3, 2021 Bensouda made an important announcement wherein she said that, on December 20, 2019, after a painstaking preliminary examination lasting almost five years, she had requested the Judges of Pre-Trial Chamber for a ruling to clarify the territorial scope of the Court’s jurisdiction in the Situation in Palestine.
According to Bensouda, the Chamber decided, by a majority, that the Court may exercise its criminal jurisdiction in the Situation in Palestine, and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. The Chamber further ruled that Palestine is a State Party to the Rome Statute and that Palestine’s referral of the Situation obliged the Office to open an investigation, the Office having determined that there existed a reasonable basis to do so in accordance with the Rome Statute criteria.
When Khan was sworn in on June 16, 2021, he already had a reasonable basis to proceed with ‘admissible potential cases’ awaiting his attention. He has two Deputy Prosecutors assisting him, as well as teams of investigators at his disposal. It is therefore of great concern that no indictments and arrest warrants have to date been issued against the political leaders of Israel and the military commanders of the IDF, for the invasion of Palestine in 2014 and the egregious violations of International Law committed by the IDF in that year.
Compounding this concern is that on March 17, 2023, the ICC issued arrest warrants for President Vladimir Putin, the President of Russia, and Maria Lvova-Belova, the Russian Commissioner for Children’s Rights, alleging responsibility for the war crime of unlawful deportation and transfer of children during the Russo-Ukrainian war. The upshot of the warrants of arrest, means that the 123 member states of the ICC are obliged to detain and transfer Putin and Lvova-Belova, if either sets foot on their territory. What is troubling though, is that the ICC’s office was able to issue a warrant for Putin’s arrest following an invasion that commenced on 24 February 2022, but it has since 2014, not been able to issue a warrant of arrest for the war criminals in Israel. How does Khan explain this?
Apart from the 2014 Situation in Palestine, and given that two months have passed after Israel unleashed its bloody bombing campaign upon the Gaza Strip, the question may well be asked whether there can be any doubt that Khan has sufficient evidence upon which to proceed in respect of Israel’s international law crimes committed since October 7. Khan, himself, is on record as saying on October 30, 2023, after his brief visit the day before, to the Rafah Crossing between Egypt and the Gaza Strip, that he has seen footage of what has taken place beyond the Rafah Crossing. He acknowledges that the Palestinians are enduring unimaginable suffering and that the pictures we see can only be described as horrific and heartbreaking. He adds he had personally seen whilst at the Crossing, trucks full of goods and humanitarian assistance stuck where no one needed them. These facts, on Khan’s own showing, constitute a crime against humanity, to the extent that both the bombing of the Gaza Strip and the prevention of aid by Israel to the Palestinians, amount to intentionally causing suffering, or serious injury to body or to mental or physical health as contemplated in the Rome Statute.
Why then, with all of this evidence (real and otherwise) at the disposal of Khan, has he not been able to wrap up the investigations into the Situation in Palestine and issue indictments and arrest warrants against Netanyahu and his political cohorts, as well as the known commanders of the IDF for the carnage committed by the IDF against the Palestinians since October 7?
Khan, in another statement on December 3, indicated that he had just come back from the West Bank, where he had talks with the President of the Palestinian Authority. He further indicated that he had talks with Israeli survivors and family members who endured loss, the horrors of hostage-taking and the insecurity of the unknown. He added that he had spoken to individuals who had lost their loved ones in the rubble of Gaza. And he proceeded to speak about the role of law in the international sphere and the obligations upon State Parties and other entities to comply therewith.
However, it must be observed, that Khan is not an ambassador nor a head of state, but the ICC Prosecutor, with a particular mandate, in terms of the Rome Statute, to hold accountable people for violating international law. The world does not want to hear speeches from an ICC Prosecutor about the lofty objects and ideals of International Law. The ICC Prosecutor, should have made it clear as to what point his investigation has reached. At the very least, he should have announced that the available evidence justifies certain ineluctable conclusions, which will before long, lead to indictments and arrest warrants being issued.
It is not suggested that the ICC Prosecutor should have disclosed his prima facie conclusions, nor who the persons are in respect of whom indictments and arrest warrants will be issued. What is not needed, are speeches simply stating that there is an investigation that is ongoing and what international law requires of entities and/or states engaged in conflict situations. This is not a time for sterile diplomacy nor esoteric speeches about the principles of International Law. Rather, it is a time for aggressive and intensive investigation as a matter of extreme urgency, to bring to account all of those responsible for the egregious violations of International Law. The urgency of the matter is underscored by the relentless violence being perpetrated against the Palestinians by Israel and the threat of drawing other countries into the conflict, thereby threatening world peace and order.
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The question may well be asked, whether political and other pressures are being brought to bear on the office of the current ICC Prosecutor. This question is especially relevant given that on September 2, 2020, the United States Government imposed travel and other sanctions on Bensouda, and another Senior Prosecution Official of the ICC, and placed them on a blacklist for criminals and terrorists. This is pursuant to an executive order issued on June 11, 2020, by President Donald Trump, to thwart ICC investigations into US armed forces’ activities in Afghanistan. This is the kind of murky environment that obtains when decisions, not consistent with US domestic or foreign policy, are taken, whether by the ICC Prosecutor or any other international agency.
To sum up, international criminal law’s stated aim is to end impunity for international crimes. The ICC has been specifically established to deal with those crimes, its mandate being to promote accountability for Rome Statute crimes, regardless of the status and/or title of a perpetrator, to deter such crimes. Given the most flagrant and egregious violations of international law, presently being perpetrated by Israel against the people of Palestine, and the threat to world peace and order, it is of the utmost and crucial importance that the ICC Prosecutor, discharges with the necessary expedition, the mandate entrusted to him, to hold accountable, those responsible for the ongoing international law crimes committed against the peoples of Gaza and the West Bank.
Finally, given the available evidence at hand, can a reasonable person be faulted for expecting a speedy outcome following a thorough investigation into the horrendous atrocities committed by Israel against the Palestinians, now and in the past? Are right-thinking people of the world, not entitled to ask whether behind all of this dilatoriness in bringing the perpetrators of these egregious crimes to justice, there is some power or powers so formidable that even those who administer justice, will not dare to incur their wrath?
Click here for part one.
- MA ALBERTUS SC, is a practising member of the Cape Bar, former Chairperson of the Cape Bar and former Visiting Professor in Comparative Law at the Levine College of Law, University of Florida.
