Context-

The Prosecutor of the International Criminal Court (ICC), announced his application to a pre-trial chamber of the ICC to issue arrest warrants against five individuals linked to the conflict in Gaza. These individuals include Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minister Yoav Gallant, and three Hamas leaders, including Yahya Sinwar, the leader of Hamas. This announcement has sparked significant controversy and could potentially have adverse consequences for the ICC. It is crucial to examine the legal basis for this request and its implications.

The Establishment and Purpose of the ICC

1.  Formation and Objectives

• The ICC was established in 2002, by the Rome Statute, a treaty negotiated over two decades ago, to provide legal redress for grave international crimes, including genocide, war crimes, and crimes against humanity.
• The ICC builds upon the legal legacies and jurisprudence of earlier international courts, such as the ad hoc United Nations tribunals for Rwanda and the former Yugoslavia, to address individual criminal responsibility. It is essential to note that the ICC's jurisdiction focuses on individuals rather than nations or groups.

2.   Jurisdiction and Operations

The Rome Statute grants the ICC jurisdiction over four main crimes:

• Genocide
• Crimes against Humanity
• War Crimes
• Crime of Aggression

The ICC may exercise jurisdiction in cases where:

• These crimes were committed on or after July 1, 2002.
• The crimes were committed by a national of a State Party or on the territory of a State Party, or in a State that has accepted the Court's jurisdiction.
• The crimes were referred to the ICC Prosecutor by the United Nations Security Council (UNSC) pursuant to a resolution adopted under Chapter VII of the UN Charter.

Allegations and Charges

• Hamas Officials: The ICC Prosecutor alleges that Hamas officials are responsible for a range of war crimes and crimes against humanity. These allegations stem from Hamas’ attacks against Israel on October 7, 2023.
• Israeli Officials: The charges against Israeli officials assert that since October 8, 2023, they have been responsible for war crimes and crimes against humanity.  These applications for arrest warrants are supported by an independent panel of experts.

Legal Framework and Jurisdiction

• Rome Statute and ICC Procedures: Based on the Rome Statute and the procedures of the ICC, the judges of the pre-trial chamber must decide whether to issue the requested arrest warrants. This determination is based on the evidence submitted by the Prosecutor. For the warrants to be issued, the judges must be satisfied that there are “reasonable grounds to believe” that the individuals have committed crimes within the jurisdiction of the court.
• Jurisdiction Over Non-State Parties: A significant argument against the Prosecutor’s actions is that Israel is not a state party to the Rome Statute, suggesting the ICC cannot exercise jurisdiction over it. However, this argument is flawed. The ICC has previously exercised jurisdiction over non-state parties in certain circumstances. For instance, in the Bangladesh/Myanmar situation, the court held that even though Myanmar is not a state party, the ICC has jurisdiction by virtue of particular crimes committed on the territory of a state party (Bangladesh). Similarly, an arrest warrant was issued against President Vladimir Putin despite Russia not being a state party.
• Jurisdiction Over Israeli and Palestinian Territories: The ICC’s jurisdiction over the current situation is further clarified by a pre-trial chamber’s decision in 2021, affirming that the ICC can exercise criminal jurisdiction in the State of Palestine, encompassing Gaza, the West Bank, and East Jerusalem. This jurisdiction includes actions that have occurred since October 7, 2023.

Obligations of States

• An immediate consequence of a positive decision on these warrants involves the obligations of all states that have ratified the Rome Statute to cooperate, including arrest.
• Historical precedents highlight the challenges in this area. For example, when arrest warrants were issued for Omar al-Bashir of Sudan, some states failed to comply with their obligations. When al-Bashir was in South Africa for a summit, legal proceedings aimed to initiate his arrest. However, South Africa chose not to arrest him, a decision criticized by the Supreme Court of Appeal of South Africa and judges of the ICC.
• While this was a failure to arrest, the existence of the warrant significantly hampers the individual’s scope of activity and remains an obligation for over a hundred states party to the Rome Statute.

Parallel Proceedings at the International Court of Justice (ICJ)

• In addition to the ICC proceedings, there are separate proceedings before the International Court of Justice (ICJ) in The Hague. South Africa has alleged violations of the Genocide Convention by Israel concerning its actions in Gaza. The ICJ has already issued provisional measures, similar to injunctions in domestic law.
• Unlike the ICC, which focuses on individual criminal responsibility, the ICJ proceedings aim to determine the legal responsibility of a state.

Significance of the ICC Prosecutor's Decision

• Testing International Law: The decision by the ICC Prosecutor is of profound significance as it tests the robustness and application of international law in a highly contentious crisis. While this step may not provide an immediate solution, it underscores the principle that no one should be able to commit international crimes with impunity. The pursuit of accountability is essential to upholding the rule of law on an international scale.
• Broader Implications: This action by the ICC signals a commitment to the idea that accountability for international crimes should not be an elusive goal. The issuance of arrest warrants, even against high-profile leaders, reflects the ICC’s dedication to ensuring that individuals are held responsible for their actions, regardless of their political status or the power they wield. This principle is fundamental to maintaining international justice and deterring future violations.

Conclusion

The ICC’s application for arrest warrants against leaders from both Israel and Hamas represents a crucial step in the pursuit of justice for international crimes. It reaffirms the ICC’s mandate to hold individuals accountable for war crimes and crimes against humanity, emphasizing the importance of the rule of law. Despite potential challenges and opposition, this move highlights the necessity of addressing grave violations and ensuring that no one is above the law. The actions of the ICC and the parallel proceedings at the ICJ demonstrate the international community’s commitment to legal accountability and the protection of human rights.

Source- The Hindu