By Sadie Sher
The question is whether the ICC is treating Israeli Prime Minister Benjamin Netanyahu differently than other heads of state in its investigation into alleged war crimes in Gaza.
Why does it matter?
The ICC has never issued arrest warrants for war crimes against the leader of a Western democratic nation. The ICC relies on the cooperation of other states around the world in the sharing of information, aiding in investigations, detaining suspects, and protecting victims and witnesses. This cooperation is necessary given the ICC’s limited resources and most importantly, it does not have its own police force to apprehend suspects. If the ICC oversteps its jurisdiction and does not handle this case carefully, nations may be reluctant to join the ICC or cooperate with the ICC, which may diminish the ICC’s reputation. This may make it more difficult for it to carry out its mission of investigating and prosecuting war crimes around the world.
What is the ICC?
The ICC is the first permanent international criminal court established to investigate and prosecute individuals for war crimes, crimes against humanity, crimes of aggression, and genocide.
Where did the ICC get its jurisdiction?
The Rome Statute established the ICC’s jurisdiction over member states.
What are some important aspects of the Rome Statute?
Parties to the Rome Statute agree to be bound by cooperation agreements, including sharing information, aiding in investigations, detaining suspects, and protecting victims and witnesses. The Principle of Complementarity means the ICC is meant to complement but not replace the member state’s criminal justice system. The ICC can only intervene if the state in question is unable or unwilling to investigate and prosecute the individuals accused of war crimes.
Who are members of the Rome Statute?
- 124 countries total
- 22 democratic countries
Who is NOT a member of the Rome Statute?
Importantly, the U.S., Israel, Russia, India, and China.
How is it possible that the ICC can investigate crimes committed in Gaza?
Palestine delegated its power to investigate alleged war crimes committed in the Gaza Strip.
To which heads of state has the ICC issued arrest warrants?
Heads of state
Leaders of Western democracies
Leaders of Western democracies that are not members of the Rome Statute (prior to this case)
Only Putin, Bashir, and Netanyahu are leaders of nations not parties to the Rome Statute.
Comparing the two cases to help answer the research question
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BENJAMIN NETANYAHU
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OMAR AHAD AL-BASHIR
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Type of Government
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Parliamentary Democracy
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Federal Republic
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Is their Government a Rome Statute Signatory? “State Party”
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No
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No
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State Party Referral?
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Yes
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No
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Referral by Prosecutor or Security Council?
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Both
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No
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Did the alleged crime occur after July 1, 2002?
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Yes
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Yes
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Where did the alleged war crimes occur?
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West Bank, East Jerusalem, Gaza Strip (ruled ICC Territory)
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Darfur, Sudan (non-State Party territory)
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Is the suspect a natural person over 18?
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Yes
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Yes
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Are the alleged crimes subject to the Rome Statute?
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Yes
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Yes
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Did the prosecutor determine the alleged war crimes were grave?
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Yes
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Yes
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Did the Prosecutor address Complementarity?
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Yes, but must be investigated further
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Yes
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Did the prosecutor determine if moving forward would serve the interests of justice?
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Yes
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Yes
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Date of Application for Arrest Warrant?
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May 20, 2024
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March 4, 2009; July 12, 2010
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Time between Alleged Crimes and Arrest Warrant Application
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Approximately 8 months
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Approximately 3 years
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Was there a pretrial hearing?
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No
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Yes
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Did the state have an independent judiciary?
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Yes
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No
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Has the state conducted its own investigation?
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No
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No
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Is the state capable and willing to conduct its own investigation?
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To be determined
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No
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Click on the link below for full version of chart
https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:409e00e8-75c9-4b88-a43e-f13e8d41a239
Arguments that the ICC does not have jurisdiction over Netanyahu
- Israel did not sign the Rome Statute
- Palestine is not a sovereign state or U.N. member nation
- The Oslo Accords prevent Palestine from bringing criminal charges against Israel
- Israel has an independent, functioning judicial system and can prosecute Israeli Nationals (Principle of Complementarity)
Did the ICC analyze the Principle of Complementarity between October 8, 2023, and May 20, 2024, in the case against Netanyahu?
The ICC has not yet decided on the issue. If arrest warrants against Netanyahu are issued, then the ICC will have concluded that Israel itself is not capable or willing to prosecute war crimes against Netanyahu. If arrest warrants against Netanyahu are issued, it appears that the ICC would be treating him differently than Al-Bashir, and maybe worse, if the ICC does not carefully analyze and consider whether Israel is a country that is capable and willing to investigate, prosecute, or try him in Israel. The ICC took approximately 3 years to conclude on the jurisdictional issues in the Al-Bashir case.
Policy Recommendations and Conclusion
The definitions of “capable” and “willing” are not well defined under the Complementarity Principle and the ICC should use the case against Netanyahu to develop new clear and objective standards to serve as an example that the ICC is using objective standards to decide who it investigates and prosecutes. This could strengthen the ICC’s reputation around the world and aid its mission to encourage all nations to investigate and prosecute war crimes. The ICC should take its time and get it right before rushing to judgment against Netanyahu.
Netanyahu will continue to face pressure from Israelis and its allies to be accountable for crimes committed in defending itself in the wake of the Hamas attacks.
It is important that the ICC’s first attempt to hold a leader of a Western democracy accountable for war crimes be done carefully and methodically. Ultimately, a measured approach is in the best interests of the ICC, its member states, and nations around the world.