IsraelOK.Com
Summary: The International Criminal Court (ICC) wants to arrest Netanyahu and Gallant without following its own procedures. Israel should initiate its own investigation and other procedures.
On Thursday November 21, 2024, the International Criminal Court (ICC) issued international arrest warrants for war crimes allegedly committed by Israeli PM Benjamin Netanyahu and ex-Defense Minister Yoav Gallant (See: https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges). This means Netanyahu and Gallant can be arrested if they travel to 124 countries around the world that are signatories to the ICC – the USA is not such a signatory.
Many people suspect this is the beginning of a new Dreyfus Case and other Israelis who served in the IDF may be arrested. What is going on and what can be done?
The ICC At A Glance:
(See: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.icc-cpi.int/sites/default/files/ICCAtAGlanceEng.pdf)
The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Although the Court’s expenses are funded primarily by States Parties to the Rome Statute, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities…..
What Does The ICC Claim:
“The ICC Chamber considered that there are reasonable grounds to believe that both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024….
The Chamber therefore found reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare….
On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met. However, the Chamber did find that there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.”
(“For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: [email protected]”).
Is There a Way Out?
The ICC says it is intended to complement, not to replace, national criminal justice systems. It can prosecute cases only if national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings genuinely. This fundamental principle is known as the principle of complementarity.
According to the Parliamentarians For Global Action (PGA) “The ICC is complementary to national criminal jurisdictions, meaning that States have the primary competence and authority to investigate and prosecute international crimes. According to the principle of complementarity, the ICC may only exercise jurisdiction when national legal systems fail to do so, when it is demonstrated that they are unwilling or unable to genuinely carry out proceedings.
The principle of complementarity is implemented by the ICC through Articles 17 and 53 of the Rome Statute, which deal with the conditions for a specific case to be admissible at the ICC” (See: https://www.pgaction.org/ilhr/rome-statute/complementarity.html#:~:text=According%20to%20the%20principle%20of,to%20genuinely%20carry%20out%20proceedings.)
What Does The Rome Statute Say?
The Rome Statute of the International Criminal Court lays down the international legal framework governing the ICC’s activities.
Article 5 of the Rome Statute says the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.
Article 17 of the Rome Statute says: The ICC Court shall determine that a case is inadmissible where the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.
In order to determine unwillingness in a particular case, the Court shall consider, whether one or more of the following exists, as applicable: (a) shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court (b) unjustified delay in the proceedings (c) The proceedings were not or are not being conducted independently or impartially and in a manner which is inconsistent with an intent to bring the person concerned to justice.
In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
Article 53 of the Rome Statute reiterates that in deciding whether to initiate an investigation, the Prosecutor shall consider whether the case is or would be admissible under article 17.
What Should Israel Do?
Very simple.
- First, Israel should initiate its own independent impartial commission of inquiry – then insist the ICC drop the arrest warrants against Netanyahu and Gallant based on Articles 17 and 53.
- Second, the Israeli legal system should register and demonstrate that it is investigating all complaints against Israelis alleging genocide, crimes against humanity, war crimes and aggression. Justice needs to be seen to be done.
- Third, the proposed reform of the Israeli legal system should be amended to incorporate a US style written constitution. Amendments would require a super majority e.g. two thirds of Knesset members. This would serve as a framework to provide checks and balances on the Israeli executive, legislative and judicial branches of government.
- Fourth, a separate international commission of inquiry should be established to investigate the actions of Hamas, Hezbollah, Iran, the Houthis and other less peaceful parties.
- Fifth, Israel should countersue Hamas and Hezbollah for war reparations.
- Sixth, the day after the war should be planned now. In particular, the Gaza Marine gas field should be developed and exploited for the benefit of Gazans. The signatories for bank account(s) used to invest in equipment, receive gas sale proceeds and spend them should be in safe hands in Jerusalem, Washington DC and London.
© Leon Harris, 21.11.24
