This article was originally published on Sept. 16, 2024. It is now updated on Oct. 7, 2024 following the public release on that day of Israel’s two submissions to the International Criminal Court. Substantive updates are identified in the body of the text below.
On May 20, the Prosecutor for the International Criminal Court (ICC), Karim Khan, applied to a Pre-Trial Chamber of the Court for the issuance of arrest warrants against three Hamas leaders and against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Two of the three Hamas leaders—Mohammed Deif and Ismail Haniyeh—reportedly have been killed, and the Pre-Trial Chamber has formally terminated proceedings against one of them (Haniyeh). The third Hamas leader, Yahya Sinwar, has been indicted in the U.S. District Court for the Southern District of New York for the massacre of October 7, 2023, which may well render any case against him in the ICC inadmissible under Article 17(1)(a) of the Rome Statute. For all practice purposes, then, it’s likely that all that ultimately remains of the Prosecutor’s applications are his requests for arrest warrants against Netanyahu and Gallant.
The three-judge Pre-Trial Chamber can issue an arrest warrant against Netanyahu or Gallant only if it finds (a) there are “reasonable grounds to believe” that the person has committed a crime within the jurisdiction of the Court and (b) arrest “appears necessary” to prevent him from continuing with criminal behavior within the Court’s jurisdiction that arises out of the same circumstances. Even if the Pre-Trial Chamber approves the requested warrants, it is far from certain that Netanyahu or Gallant would ever be arrested and tried by the ICC. Nevertheless, an arrest warrant would, in Tom Dannenbaum’s words, “shrink the world of Netanyahu and Gallant,” because the 124 state parties to the Rome Statute would have a legal obligation to arrest and transfer them to The Hague if they appear in such a State’s territory. That does not mean that every one of the State parties would comply with that obligation. (Vladimir Putin, for example, just recently visited Mongolia without being arrested, despite the existence of an outstanding ICC arrest warrant.) It would, however, be a significant deterrent to the two Israeli officials’ travel to many nations. (The United States is not a State Party to the treaty, but most European nations are, including the UK, France, and Germany.)
As Todd Buchwald explained at Just Security a couple of weeks ago, the Pre-Trial Chamber agreed to accept dozens of amicus submissions (“observations”) from various parties, including the United States, regarding the Prosecutor’s applications for arrest warrants. Tyler McBrien has very helpfully compiled a searchable database of most of those submissions here. On August 23, the Office of the Prosecutor filed a responsive brief with the Pre-Trial Chamber.
The “observations” briefs address many issues. It is unlikely that most of those issues will materially affect whether the Pre-Trial Chamber issues arrest warrants against Netanyahu and Gallant.
Two of the issues, however—both appearing in the United States’ observations brief—raise more serious questions about the propriety and timing of further action respecting Netanyahu and Gallant. In this and the subsequent article, I’ll address those two questions in turn.
[UPDATE: On Friday, September 20, Israel filed two briefs with the ICC. On Monday, September 23, it refiled those briefs with modified titles, to conform to the nomenclature the ICC is using (“Situation in the State of Palestine”). In one of those filings, Israel argues that the Court lacks jurisdiction to investigate and try Netanyahu and Gallant for the alleged offenses. I will address those arguments in the second installment of this essay, which Just Security will publish here shortly. In the other filing, Israel makes arguments similar to those the United States previously offered to the effect that the Prosecutor must provide further notice to Israel of the nature of the alleged offenses before the Court can issue the requested arrest warrants. I have updated this essay to add details from the Israeli submission. Substantive edits are identified.]
In this essay, I describe and discuss the United States’ [and Israel’s] view—shared by Germany and others—that arrest warrants against Netanyahu and Gallant would be premature because the Prosecutor did not provide Israel with sufficient notice of the alleged crimes. In my second essay, I’ll discuss the United States’ [and Israel’s] more fundamental objection that the ICC lacks jurisdiction over Israeli nationals for conduct involving Gaza because (according to the United States and Israel) Palestine is not a state that itself would have prescriptive or enforcement jurisdiction over such persons as a matter of international law.
Although I’ll offer a few observations about strengths and weaknesses of (and factual uncertainties regarding) these two arguments, it is not my intent here to offer any firm view on how the Pre-Trial Chamber should resolve them. My more modest goal is simply to help Just Security readers better understand the two key objections, the legal questions they raise, and the Prosecutor’s counterarguments.
* * * *
The Argument that the Prosecutor Acted Prematurely
In order to understand the United States’ [and Israel’s] objection that Prosecutor Khan acted prematurely in seeking arrest warrants without giving Israel more of an opportunity to investigate the alleged crimes, it is necessary to first describe (i) the nature of Khan’s allegations against Netanyahu and Gallant; and (ii) what notifications, if any, the prosecutor’s office gave Israel before seeking the arrest warrants.
The Extraordinary Allegations Against Netanyahu and Gallant
Over the past ten months, many observers have raised serious questions about whether attacks against Hamas by the Israel Defense Forces in Gaza have violated the international humanitarian law principle of proportionality. That rule prohibits an attack against a valid military objective when it is expected to cause incidental loss of civilian life, injury to civilians, and/or damage to civilian objects that would be excessive in relation to the anticipated concrete and direct military advantage of such attack. Certain severe violations of that norm in international armed conflicts are also war crimes under Article 8(2)(b)(iv) of the Rome Statute (“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”) (emphasis added).
I share those concerns about the possibility of disproportionate IDF attacks in Gaza. Although any ultimate assessment of such questions will depend upon a close evaluation of the facts, many of which are not yet fully disclosed, there certainly appear to have been a number of cases in which any anticipated “concrete and direct military advantage” of an IDF attack on a facility or a gathering of persons in Gaza could not justify the overwhelming civilian harms that must have reasonably been expected to result from the attack. The U.S. State Department agrees that there are serious questions about Israel’s compliance with international humanitarian law in connection with such strikes, as reflected in its May 20 Report to Congress:
[T]here are numerous credible UN, NGO, and media reports of Israeli airstrikes impacting civilians and civilian objects unrelated to humanitarian operations that have raised questions about Israel’s compliance with its legal obligations under IHL and with best practices for mitigating civilian harm. These include reported incidents involving strikes on civilian infrastructure and other sites protected from being made the object of attack absent use for a military purpose; certain strikes in densely populated areas; strikes taken under circumstances that call into question whether expected civilian harm may have been excessive relative to the reported military objective; or failure to provide effective warning or take appropriate precautions to protect civilians. Strikes on protected sites do not necessarily constitute violations of IHL, as such sites can be legitimate targets if used for military purposes. However, all military operations must always comply with IHL rules, including distinction, proportionality, and precautions. Because Hamas uses civilian infrastructure for military purposes and civilians as human shields, it is often difficult to determine facts on the ground in an active war zone of this nature and the presence of legitimate military targets across Gaza. As noted above, the reported death tolls in Gaza generally do not differentiate between Hamas and civilian deaths, further complicating efforts to precisely assess the civilian impact. …
While Israel has the knowledge, experience, and tools to implement best practices for mitigating civilian harm in its military operations, the results on the ground, including high levels of civilian casualties, raise substantial questions as to whether the IDF is using them effectively in all cases.
With one discrete exception (noted below), however, Khan’s applications for arrest warrants against Netanyahu and Gallant do not implicate these questions, particularly about whether the IDF has complied with the principle of proportionality when attacking legitimate Hamas military targets. Khan has not, for example, made any charges under Article 8(2)(b)(iv) of the Rome Statute. (Adil Haque therefore may leave a misimpression when he writes that the Pre-Trial Chamber should “issue arrest warrants based on the evidence before it with utmost urgency” because the IDF has “reportedly killed 6,316 Palestinians and reportedly wounded another 14,892” since the Prosecutor made his request on May 20. The Prosecutor’s application does not involve the vast majority of the IDF strikes to which Haque presumably refers, nor those possible IHL violations flagged in the excerpt above from the State Department Report.)
Instead, Khan’s remarkable, central charge (which Haque does not mention nor address in his post) is that Prime Minister Netanyahu and Defense Minister Gallant “bear criminal responsibility” for a “State policy” to starve the civilian population of Gaza as “a method of war.”
It is important for readers to understand the nature and gravity of this charge. According to Khan’s public statement on May 20, “Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival,” and that Netanyahu and Gallant are “two of those most responsible” for this “common plan” to deliberately cause such grave harms to Gaza’s civilians.
This is not simply a charge that Israel’s restrictions on the flow of aid, primarily in order to prevent Hamas from using such resources in its war effort, have had devastating incidental impacts on the civilian population and that Israel must do much more to facilitate and provide such aid. Nor is it a charge that IDF forces have failed to properly identify humanitarian aid workers and civilians in some cases. Those are criticisms the United States itself has repeatedly made, including in the State Department’s May 20 Report:
During the period since October 7, and particularly in the initial months, Israel did not fully cooperate with USG efforts and USG-supported international efforts to maximize humanitarian assistance flow to and distribution within Gaza. There were numerous instances during the period of Israeli actions that delayed or had a negative effect on the delivery of aid to Gaza. …
The [U.S. Intelligence Community] assesses that Israel could do more to avoid civilian harm …. One specific area of concern is the impact of Israel’s military operations on humanitarian actors. Despite regular engagement from humanitarian actors and repeated USG interventions with Israeli officials on deconfliction/coordination procedures, the IDF has struck humanitarian workers and facilities. While Israel repeatedly committed to improve deconfliction and implemented some additional measures, those changes did not fully prevent subsequent strikes involving humanitarian workers and facilities during the reporting period. The USG will continue to press the Government of Israel on the need to do more to create a permissive and safe environment for delivery and distribution of aid. The UN reports that more than 250 humanitarian workers have been killed in the course of their work or in other circumstances. Multiple military operations have taken place in protected or de-conflicted sites or in areas designated for evacuees.
Khan’s allegations go much further: He charges that Netanyahu and Gallant bear responsibility for a deliberate state policy of endeavoring to starve the civilian population to achieve at least three objectives: (i) “as a means to eliminate Hamas”; (ii) to “secure the return of the hostages which Hamas has abducted”; and (iii) to “collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.”
That is an extraordinary allegation, but it isn’t even the most alarming charge in the Prosecutor’s announcement. Khan also alleges that Netanyahu and Gallant are responsible for the “[i]ntentional[] directi[on]” of “attacks against a civilian population,” including the use of lethal force on persons queuing for food and on aid workers (presumably referring, for instance, to the attack on the World Central Kitchen vehicles), in furtherance of the alleged common plan to deliberately starve the civilian population of Gaza. This goes well beyond the sharp criticisms in the State Department Report, which stated that the U.S. Intelligence Community “has no direct indication of Israel intentionally targeting civilians.”
At one point, Khan’s May 20 statement suggests that Netanyahu and Gallant are responsible as “superiors” of those who have acted pursuant to this “State policy”—presumably on a theory that they failed to take steps sufficient to prevent or repress such actions. In that same sentence, however, Khan also alleges that Netanyahu and Gallant have been “co-perpetrators.” And a panel of experts convened by Khan, who have “carefully reviewed each of the applications for arrest warrants, as well as underlying evidence,” pronounced that “[t]he Prosecutor seeks to charge Netanyahu and Gallant on the basis that they made an essential contribution to a common plan to use starvation and other acts of violence against the Gazan civilian population as a means to eliminate Hamas and secure the return of hostages as well as to inflict collective punishment on the civilian population” (emphasis added).
If these allegations are accurate, there would be no serious dispute that Netanyahu and Gallant, along with any others complicit in such a “common plan,” engaged in egregious violations of international law, whether or not the ICC has jurisdiction to adjudicate such crimes. Indeed, in its amicus submission, the Israel Bar Association, which opposes the arrest warrants, acknowledges that such a plan to starve the Gaza civilian population (and to direct lethal force against civilians as part of that plan) would be “a manifestly unlawful policy” that contravenes “Israel’s clear legal obligations and publicly stated positions.” (To be clear, the Israel Bar Association contends that precisely because such an objective would be so manifestly unlawful, it could not possibly have been “instituted at the highest political echelon and implemented throughout the civilian and military authorities,” given “the system of legal advice” within the IDF and the Israeli judicial system. There’s no dispute, however, that the allegations describe what would be unambiguous war crimes.)
Israel itself has consistently and vociferously denied that the IDF has had any “plan” or policy to starve civilians in Gaza (let alone to direct attacks against civilians and against aid workers in the service of such a plan of starvation). When South Africa made similar allegations before the International Court of Justice, for example, Israel insisted to the ICJ (on March 15) that such accusations are “outrageous and unsubstantiated” and that such characterizations of the Israel’s conduct are “manifestly untrue” and “emphatically denied.” And on May 18—just two days before Khan’s application for arrest warrants—Israel informed the ICJ (in response to a question from Judge Nolte) that it was making extensive efforts to ensure that the civilian population in Gaza obtained sufficient food, water, shelter and healthcare (see paras. 14-34). In making this argument, Israel quoted a statement by Prime Minister Netanyahu himself that “[w]e recognize the need … to take care … of the [civilian population’s] humanitarian needs, and we are operating accordingly.” (Likewise, on April 10, Defense Minister Gallant announced that “we plan to flood Gaza with aid.”)[1]
Khan’s charges are, in effect, that these Israeli representations about state policy are false—and that, as he stated in his May 20 announcement, he has adduced evidence establishing that “the threshold of a realistic prospect of conviction has been met.” The evidentiary basis for that conclusion, however, is not yet publicly available. To be sure, in his May 20 announcement Khan identified the principal means by which Israel is said to have implemented the “common plan” of civilian starvation, including:
- “the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods;”
- “arbitrarily restricting the transfer of essential supplies—including food and medicine—through the border crossings after they were reopened;”
- “cutting off cross-border water pipelines from Israel to Gaza—Gazans’ principal source of clean water—for a prolonged period beginning 9 October 2023;”
- “cutting off and hindering electricity supplies from at least 8 October 2023 until [20 May 2024];” and
- “obstruct[ing] aid delivery by humanitarian agencies.”
Khan has not, however, publicly disclosed the evidence upon which he is relying in support of those allegations, let alone the evidence from which he has concluded that Netanyahu and Gallant joined a common plan to starve the civilian population of Gaza (and attack civilians in support of that objective).
That said, Khan did present his evidence to a panel of international law experts that he convened, which included Sir Adrian Fulford, Judge Theodor Meron, Amal Clooney, Danny Friedman, Baroness Helena Kennedy and Elizabeth Wilmshurst, assisted by Professors Marko Milanovic and Sandesh Sivakumaran. Khan asked the panel to “assess objectively” the material the Prosecutor had collected “and to advise the Prosecutor whether it meets the relevant legal test.” The panel members “carefully reviewed each of the applications for arrest warrants, as well as underlying evidence, including witness statements, expert evidence and authenticated videos and photographs obtained by investigators,” and they “attended Evidence Review sessions at the International Criminal Court’s premises.” They then unanimously concluded that there were “reasonable grounds to believe” that Netanyahu and Gallant had “formed a common plan, together with others, to jointly perpetrate the crime of using starvation of civilians as a method of warfare,” and further assessed that there were reasonable grounds to believe that those two officials are criminally responsible for direct attacks against civilians, “including attacks on civilians gathering to obtain food and on humanitarian workers,” “in the context of a widespread and systematic attack against the civilian population of Gaza, pursuant to State policy.” Presumably these experts would have been reluctant to vouch (unanimously) for such conclusions unless they had been presented with some measure of compelling evidence sufficient to support them.[2] (Notably, the panel did not address whether the evidence supports Khan’s broader assessment that there is a “realistic prospect of conviction.”)
It remains to be seen whether the Pre-Trial Chamber will agree with Khan and the expert panel that the submitted evidence provides “reasonable grounds to believe” that Netanyahu and Gallant committed the alleged war crimes with respect to the deliberate starvation and targeting of the civilian population in Gaza. If it concludes that the evidence does not meet that standard, it will not issue the arrest warrants. See Rome Statute art. 58(1)(a).
Note, however, that the evidentiary standard for an arrest warrant is not very demanding. Although Khan announced that in his view there is a “realistic prospect of conviction,” the Pre-Trial Chamber may issue arrest warrants without confirming that conclusion. According to a leading decision of the ICC Appellate Chamber, Situation in Darfur, Sudan—The Prosecutor v. al-Bashir, ¶¶ 30-31, No. ICC-02/05-01/09-OA (Feb. 2010), a finding of “reasonable grounds to believe that the person has committed” one of the identified offenses does not even require that there be substantial grounds to believe he has done so. Apparently it would be sufficient for the Pre-Trial Chamber to find that an objective observer would conclude that an individual may have committed the offense—a somewhat ambiguous standard that might even be less demanding than the “probable cause” standard for arrest under U.S. Fourth Amendment doctrine, which “requires only a probability or substantial chance of criminal activity,” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983); see also District of Columbia v. Wesby, 583 U.S. 48, 56-57 (2018).
The Prosecutor’s Notice to Israel (or lack thereof)
On March 21, the Office of the ICC Prosecutor transmitted a request for assistance to Israel, in which the Prosecutor sought “information and documentation relevant to crimes allegedly committed in Gaza by Israeli armed forces from 7 October 2023, until present.” (The quotation is from a May 1 letter to Prosecutor Khan from Modi Ephraim, Israel’s Ambassador in the Hague, which the United States, Israel, and the Prosecutor discuss and quote in their submissions to the Pre-Trial Chamber. The letter is Annex F to the Israel submission, which the Pre-Trial Chamber has not yet posted on its website. In its submission, the United States stated that Israel has “submitted this letter to the Court” itself “and does not regard it as confidential,” yet neither the United States nor the Prosecutor (nor Israel) has yet made that letter public. Particularly in light of the fact that I worked in the executive branch until August 2023, I should make clear that I did not obtain the letter from a source inside or connected to the U.S. government.) According to Israeli Ambassador Ephraim, Khan’s March 21 request for assistance did not specify the possible crimes he was investigating. (Apparently the March 21 request for assistance was preceded by another, on February 27, in which the Office of the Prosecutor asked Israel for information about Hamas’ October 7 attack and other “alleged crimes committed on Israeli territory by Palestinian nationals.” And on April 5, the Prosecutor’s Office sent Israel a third request, this one regarding “access to Gaza.”)
Following these requests for assistance, a senior inter-ministerial delegation from Israel met with Khan and his staff on April 8. According to Ephraim, the purpose of this meeting was to share information and discuss issues raised in the Prosecutor’s requests, “including the manner in which such issues are being addressed by Israel’s legal system and independent examination and investigation mechanisms.”
Three weeks after that meeting, on May 1, Ephraim wrote to Khan “to emphasize and place on record that Israel’s robust legal system has jurisdiction over all of the issues raised in [the first two requests for assistance], as well as any other alleged wrongdoing by Israeli nationals in the context of the current conflict, and professional and independent mechanisms to investigate specific incidents and policy-level issues.” Ephraim noted, in this respect, that “Israel’s legal system and examination and investigation mechanisms are at present actively involved in reviewing, examining and investigating a wide range of alleged violations of domestic and international law relating to events in Israel and Gaza since 7 October 2024.” Ephraim flagged, in particular, that the Israel Supreme Court, in its capacity as the High Court of Justice, is currently adjudicating a civil case involving “Israel’s efforts and policies regarding the humanitarian situation in the Gaza Strip” (citing Gisha at al. v. Government of Israel et al., HCJ No. 2280124).[3]
In his May 1 letter to the Prosecutor, Ephraim did not mention any criminal investigations or proceedings involving Netanyahu or Gallant, in particular (though they are among the respondents in the civil Gisha action currently pending before the Israel Supreme Court). Ephraim did, however, emphasize that “Israel’s civilian and military justice systems will not hesitate, where and as necessary, to examine, investigate, prosecute and ensure accountability including with respect to senior officials, in relation to specific incidents or policy-level issues, in accordance with Israeli and international law” (emphasis added). He also wrote that “Israel’s robust legal system and fiercely independent judiciary are held in high regard for consistently ensuring the rule of law and protecting the legal rights of individuals, including by examining, investigating and prosecuting its own soldiers and political leaders at the highest echelons” (emphasis added).
Ephraim then requested that the Office of the Prosecutor, “in accordance with the principle of complementarity to which the Court is bound,” should “defer any investigation it may be conducting in relation to any alleged criminal acts attributed to Israeli nationals or others within Israel’s jurisdiction, in favour of Israel’s processes for review, examination, investigation and proceedings under its national legal system.” Ephraim further represented that the Israeli government was “willing to further engage with your Office and to continue to share additional relevant information.”
Finally, and of particular significance for present purposes, Ephraim closed his letter to Khan with the following request for further, more specific notification of any possible alleged crimes by Israeli nationals:
[I]n line with the principle of complementarity, should your Office become aware of specific incidents or issues relating to alleged crimes attributed to Israeli nationals or others within Israel’s jurisdiction, my government requests that your Office bring these matters to our attention with appropriate specificity and sufficient time, so that the relevant Israeli authorities can examine and investigate those allegations with a view to ensuring accountability in line with the applicable law.
[UPDATE: According to Israel, the Office of the Prosecutor responded on May 7 (in Annex G to the Israel submission, which is not yet posted) that because Israel had “expressly declined to make an application for deferral of the investigation within the prescribed time limit, Israel has no standing now, under the Statute, to make such an application.”] Nevertheless, according to reporting from Reuters based upon accounts of “eight people with direct knowledge of the matter,” Khan was planning to visit Gaza, Jerusalem, and Ramallah in a trip that was to commence on May 27, which U.S. officials had been helping plan for months. During that visit, according to Reuters, Khan was to speak with Israeli leaders about his investigation and give them an “opportunity to present their position and any action they were taking to respond to the allegations of war crimes.”
On May 20, however, Khan pretermitted that visit to Israel when he unexpectedly made his application to the Pre-Trial Chamber for arrest warrants.
* * * *
The United States’s “Complementarity”-Based Objections
With that background in mind, I’ll turn now to the United States’ objections, in its submission to the Pre-Trial Chamber, that the Prosecutor acted prematurely. When Khan announced his applications for arrest warrants on May 20, U.S. Secretary of State Blinken flagged what he called “deeply troubling process questions”:
The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed. In other situations, the Prosecutor deferred to national investigations and worked with states to allow them time to investigate. The Prosecutor did not afford the same opportunity to Israel, which has ongoing investigations into allegations against its personnel.
There are also deeply troubling process questions. Despite not being a member of the court, Israel was prepared to cooperate with the Prosecutor. In fact, the Prosecutor himself was scheduled to visit Israel as early as next week to discuss the investigation and hear from the Israeli Government. The Prosecutor’s staff was supposed to land in Israel today to coordinate the visit. Israel was informed that they did not board their flight around the same time that the Prosecutor went on cable television to announce the charges. These and other circumstances call into question the legitimacy and credibility of this investigation.[4]
The United States has raised the same concerns in Part III-B of its August 6 submission to the Pre-Trial Chamber.
Much of that section of the U.S. brief consists of a general plea to the Chamber to act in a way that “preserve[s] the Court’s complementarity framework.” Article 1 of the Rome Statute declares that the ICC “shall be complementary to national criminal jurisdictions.” And as Prosecutor Khan himself noted in his May 20 announcement, the principle of complementarity “is at the heart of the Rome Statute.” On April 25, 2024, Prosecutor Khan published his Office’s Policy on Complementarity and Cooperation, in which he committed (¶¶ 3, 146) to make “concerted efforts to support national authorities in shouldering greater responsibility with respect to the investigation and prosecution core international crimes” at “all stages” of the Prosecutor’s work, including when deciding whether to “seiz[e] a Chamber with a request for an arrest warrant/ summon to appear, as well as in response to possible changes in circumstance.” Khan announced in that Policy (¶¶ 3, 4) that his office would “seek to engage in partnership with States to promote cooperation and complementary action wherever possible,” and to “foster[] efforts to catalyse genuine domestic proceedings wherever possible.” “[M]eaningful realisation of the vision set out in the Statute,” he wrote (¶ 123), “can only be achieved by deepening cooperation and by finding common ground wherever possible, even in complex and challenging circumstances.”
According to the United States, Khan’s applications for arrest warrants against Netanyahu and Gallant, made just 25 days after his publication of the Complementarity Policy, were inconsistent with that Policy because Khan did not afford Israel an adequate opportunity to investigate those officials for the starvation-related offenses he contends that they have committed. (Germany’s amicus submission to the Pre-Trial Chamber sounds a similar theme. It argues that Israel “should be given an appropriate and genuine opportunity to put its accountability mechanisms into action before the Prosecutor may request warrants for arrest under Article 58 of the Statute.”)
The United States also raises two specific legal objections related to complementarity, both of which are grounded in Article 18 of the Rome Statute. Article 18 provides, in pertinent part, as follows:
1. When a situation has been referred to the Court pursuant to article 13(a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, … the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.
2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.
3. The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.
As Yuval Shany and Amichai Cohen wrote on Just Security back in June, Article 18 thus requires the Prosecutor, at the opening of an investigation initiated by a State referral (as this one was), to notify States that would normally exercise jurisdiction over the crimes concerned, and afford them a month to inform the Prosecutor whether the State is investigating or has investigated individuals “with respect to criminal acts which may constitute crimes referred to in Article 5 and which relate to the information provided in the notification to States.” If and when a State sufficiently demonstrates that it has initiated such an investigation, the Prosecutor is supposed to defer his own investigation unless he obtains authorization to continue it from the Pre-Trial Chamber. “This intricate procedure,” wrote Shany and Cohen, “strikes a delicate balance between the Prosecutor’s extraordinary power to start an investigation, the right of States to invoke complementarity and the authority of the Pre-Trial Chamber to control the Prosecutor and protect, where appropriate, the relevant rights of States to invoke complementarity.”
i. The U.S. argument that Israel made an Article 18 “deferral” request
In paragraphs 24-26 of its submission, the United States contends that Israel’s May 1 letter to the Prosecutor was a “deferral request” made pursuant to Article 18(2), and that Khan was therefore obliged either to defer his investigation pending the outcome of Israel’s investigation or to apply to the Pre-Trial Chamber for permission to proceed with his own investigation.
As the Prosecutor rightly points out in paragraphs 112-113 of his response, however, that U.S. argument is faulty in two respects.
For one thing, Article 18(2) requires that a State ask for such a deferral within a month of receiving the Prosecutor’s notification, and in this case the only notification to Israel was made by Khan’s predecessor, Fatou Bensouda, on March 8, 2021, more than three years before Israel sent its letter to Khan on May 1, 2024.
Second, and more fundamentally, although the May 1 letter did, indeed, ask Khan to defer his investigation, Ambassador Ephraim did not purport to be acting pursuant to, or in accord with, Article 18(2)—and for good reason. Not only would such an Article 18(2) request have been time-barred, but such a request also requires the requesting State to demonstrate that it is engaged in “domestic investigations and prosecutions of the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation,” in a manner that “sufficiently mirror[s] the scope of the Prosecutor’s intended investigation.” Appeals Chamber, Judgment on the appeal of the Bolivarian Republic of Venezuela against Pre-Trial Chamber I’s “Decision authorising the resumption of the investigation pursuant to article 18(2) of the Statute” ¶ 182 (internal citation omitted) (39 ICC-02/18-89) (Mar 1, 2024) (“Venezuela Appeal Decision”).
Israel could not and did not assert that it had satisfied that prerequisite for deferral. To the contrary: The principal thrust of the May 1 letter was that Khan had not yet identified for Israel the “individuals” his office was investigating nor identified any evidence of the “relevant criminality” of their alleged conduct—information that would be necessary for Israel to assess whether an investigation of such individuals was warranted: “[I]n line with the principle of complementarity,” wrote Ambassador Ephraim, “should your Office become aware of specific incidents or issues relating to alleged crimes attributed to Israeli nationals or others within Israel’s jurisdiction, my government requests that your Office bring these matters to our attention with appropriate specificity and sufficient time, so that the relevant Israeli authorities can examine and investigate those allegations with a view to ensuring accountability in line with the applicable law” (emphasis added). The Prosecutor is thus correct that Israel’s May 1 letter was not an Article 18(2) request for deferral. It was, instead, a de facto request for a follow-up Article 18(1) letter that would afford Israel more information about the specific crimes that Israel would need to investigate in order to warrant a pause in the ICC proceedings.
ii. The U.S./Israel argument that Khan was required to provide a supplemental Article 18 notification
The United States’ other Article 18-based objection, reflected in paragraphs 17 to 21 of its amicus submission, is more substantial. The gist of that argument, which roughly tracks the argument that Yuval Shany and Amichai Cohen made here on Just Security back in June, is as follows:
(i) Prosecutor Bensouda’s Article 18 notification from 2021 was inadequate to provide Israel sufficient notice of the particular starvation-related offenses that Prosecutor Khan is now investigating against Netanyahu and Gallant;
(ii) Thus there was no predicate for Israel to have initiated any “mirroring” investigation of those officials that might satisfy its Article 18(2) burden (and that would have given Israel reason to ask for a deferral back in 2021); and
(iii) Therefore Khan was obligated to provide Israel with a supplemental Article 18(1) notification at least 30 days before asking the Pre-Trial Chamber to issue arrest warrants.
[UPDATE: Israel makes a substantially similar argument in paragraphs 31-51 of its recent submission to the Court.] This U.S./Israel argument is, in effect, that Khan was obliged to do for Israel something like what he did for Venezuela back in 2022. In December 2021, Khan sent Venezuela an initial Article 18(1) notification of an investigation his office was undertaking. A month later, in response to a request from Venezuela for more detailed information, Khan provided a second, supplemental Article 18 letter, which included a more detailed account of where his investigation was heading. He also afforded Venezuela an additional three months to open an investigation that might mirror Khan’s and to make any Article 18(2) deferral request that might be appropriate in light of any such domestic investigation. Khan also engaged in “multiple exchanges” with the Maduro government. See Venezuela Appeal Decision ¶¶ 18-19, 115. What Khan provided to Venezuela in 2022, in other words, apparently resembled the sort of detailed information that Ambassador Ephraim requested Khan provide to Israel this past May—namely, “concrete examples of allegations within the jurisdiction of the Court,” indicating “the alleged victim, date and location,” along with “locations of crimes, descriptions of the underlying acts, as well as the Prosecutor’s preliminary finding that the alleged crimes were committed pursuant to a policy, which ‘was at a minimum encouraged or approved by the Government …’, and that ‘the attack against the civilian population was at a minimum systematic.’” Id. ¶ 115.[5]
As it happens, the Venezuela case provided the occasion for the ICC Appellate Chamber an opportunity to formulate a test, of sorts, describing the nature of the notification that Article 18(1) requires. First, the court made clear (id. ¶ 3) that “[t]here is no expectation at [the] stage of the [article 18(1)] proceedings that the Prosecutor should notify States of every act he or she intends to investigate, especially in those situations referred to the Court which cover a large number of alleged criminal acts. Indeed, in such situations, the Prosecutor may be in no position to identify all potential cases that fall within the scope of a broad referral and commit, so early in the process, to investigating them.” Nevertheless, the Appellate Chamber continued, “the Prosecutor’s article 18(1) notification must be sufficiently specific in order for the State to be able to assert its jurisdiction in the proceedings under article 18(2) of the Statute” (id.). And therefore the Article 18(1) notification must provide “the general parameters of the situation and sufficient detail with respect to the groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality that the Prosecutor intends to investigate” (id. ¶ 8; emphasis added); accord id. ¶ 246 (reiterating this test verbatim); id. ¶ 104 (because “rule 52(1) of the Rules requires the Prosecutor to notify the States concerned of ‘the acts that may constitute crimes referred to in article 5, relevant for the purposes of article 18, paragraph 2,’” a State wishing to assert its jurisdiction “needs information about such acts in order to formulate its request for a deferral of the Prosecutor’s investigation and, if there are further proceedings before a pre-trial chamber, to prepare its observations”).
To be sure, the Appellate Chamber issued that ruling at a different, earlier procedural stage than the one at issue here: In the Venezuela case, the Appellate Chamber was assessing whether Venezuela’s investigations after receiving Khan’s supplemental, detailed notifications were sufficient to justify a deferral of Khan’s investigation. In the Palestine case, by contrast, the U.S. and Israel are asking a Pre-Trial Chamber to take account of the specificity of the Prosecutor’s 2021 Article 18 notification in deciding whether to issue arrest warrants several years after the Prosecutor conveyed that notification to Israel. There is no language in the text of Article 18 itself that requires a supplemental notification in this context. And Prosecutor Khan is probably right that the expansion of his investigation to include a state policy of civilian starvation that allegedly only commenced in the past year—i.e., after the 2021 notification—does not create a brand new “situation” in Palestine that requires him to commence a new process for “initiating” an investigation (which I understand to be the thrust of Alexandre Skander Galand’s post on Just Security in June). [UPDATE: In its submission, Israeli argues (see ¶¶ 19-30) that the current investigation does reflect a new “situation” that was not covered by the 2021 notification—and therefore requires a new Article 18 notification—because the “focus” of the earlier notification was on Israel’s administration of occupied territory and, in particular, on “settlement-related crimes,” and did not expressly refer to crimes committed as part of an armed conflict. Israel also argues that the “open-ended” catch-all phrases in the 2021 notification that were designed to encompass a broader scope of the “situation” to be investigated, such as “included but not limited to,” are “too broad.” This argument seems to me to be something of a stretch, but I am not sufficiently versed in the ICC caselaw to evaluate it fully. Suffice it to say that Israel’s second argument, based upon the Appellate Chamber’s Venezuela decision and described in greater detail below, strikes me as considerably stronger than the “there is a new situation” argument.]
Nevertheless, the Appellate Chamber’s Venezuela decision strongly suggests that the Rome Statute should be implemented in a pragmatic manner that facilitates the ability of affected States to play their anticipated role in the complementarity-based system. Therefore, it is not hard to imagine that the Pre-Trial Chamber might be reluctant to issue arrest warrants against Netanyahu and Gallant unless and until Khan provides Israel a more detailed, supplemental Article 18 notification that offers more specificity about why he has concluded there are reasonable grounds to believe those officials have joined a common plan of state policy to deliberately starve the civilian population of Gaza (and to direct lethal force against such civilians) in order to achieve their war aims, including the return of hostages and (in Khan’s words) to “collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.” Otherwise, according to the United States, “[t]he notification regime provided under article 18 could … be rendered meaningless,” because Israel would have had no basis for initiating the sort of investigations that could justify a deferral request under Article 18(2). [UPDATE: See also Israel’s submission ¶ 49 (“The need for a supplemental or new article 18 notice also accords with the manifest purpose of article 18(1).”).] Such a ruling would, moreover, be consistent with Khan’s own commitment, in the recent Policy on Complementarity and Cooperation, to make “concerted efforts to support national authorities in shouldering greater responsibility with respect to the investigation and prosecution core international crimes” at “all stages” of the Prosecutor’s work, including when deciding whether to “seiz[e] a Chamber with a request for an arrest warrant” (emphasis added).
If the Pre-Trial Chamber does apply the Venezuela test in this procedural context, there is little doubt that the 2021 Article 18 notification would not satisfy that test for purposes of the Netanyahu and Gallant allegations. In her 2021 notification, Prosecutor Bensouda specified that she had determined there was a reasonable basis to believe war crimes were committed in three discrete contexts: (i) “in the context of the 2014 hostilities in Gaza” (with respect to which she specified a number of particular crimes allegedly committed by IDF members); (ii) in the context of the transfer of Israeli civilians into the West Bank beginning in June 2014; and (iii) in the context of crimes allegedly committed by IDF members against persons participating in demonstrations near the Gaza border fence beginning in March 2018.
Bensouda expressly noted that these specifications would not affect her authority to engage in further investigations encompassing “any alleged crimes” within the broader scope of the “Situation in Palestine” that the Palestinian Authority had referred to her in 2018. Nevertheless, her Article 18(1) letter clearly conveyed that any possible request for deferral by Israel under Article 18(2) should be specific to the three specific categories of crimes set forth in her letter: “In accordance with article 18(2) of the Statute,” she wrote, “I invite you to inform the Court within one month of receipt of this notification whether your State is investigating, or has investigated, its nationals or others within its jurisdiction, with respect to the above criminal acts allegedly committed in the Situation in Palestine” (emphasis added). Those acts did not, of course, include any conduct by any Israeli officials to implement a common plan in 2023 and 2024 to starve the Gazan population. [UPDATE: Israel’s submission elaborates upon this point at some length, recounted in the footnote below.*] Therefore the 2021 notification does not satisfy the Venezuela test for purposes of affording Israel notice that it should investigate Netanyahu and Gallant for such crimes. [UPDATE: See also ¶ 51 of Israel’s recent submission (“How is it possible to demonstrate such mirroring in the absence of information about the investigations that are to be mirrored?”).]
It is possible, of course, that the Office of the Prosecutor did convey to Israeli officials—for example, when the senior inter-ministerial delegation from Israel met with Khan and his staff on April 8—at least some of the evidence that is said to support a reasonable basis to believe that Netanyahu and Gallant have committed the crimes in question. The Appellate Chamber’s decision in Venezuela indicates (see ¶ 115) that the Prosecutor can provide the requisite notification in such “exchanges,” rather than in (or in addition to) the text of the Article 18 letter itself. Yet neither the Prosecutor nor Israel—nor any other public source, as far as I know—has suggested that the Prosecutor provided Israel with such notification before he made the applications for arrest warrants on May 20. [UPDATE: In its recent submission, Israel offers no reason to believe the Prosecutor did so.] (Moreover, there’s no apparent reason why it would be “necessary” for the Prosecutor to “limit the scope of the information provided” to Israel in order “to protect persons, prevent destruction of evidence or prevent the absconding of persons.” Art. 18(1).)
In his submission to the Pre-Trial Chamber, Prosecutor Khan does not engage directly with this particular United States argument about the need for a supplemental Article 18(1) notification.[6] Khan does, however, hint in his response that perhaps he abruptly abandoned his plans for further discussions with Israeli officials because he concluded that any further notification to Israel—any effort to afford Israel an opportunity to undertake its own investigation—would be futile, and thus a waste of valuable time. “[T]he core allegations against [Netanyahu and Gallant],” Khan writes (¶ 8), “have simply been rejected by Israeli authorities.” In his public statement on May 20, Khan was even more forthcoming in this regard: He took pains in that statement “to emphasise that the principle of complementarity, which is at the heart of the Rome Statute, will continue to be assessed by my Office as we take action in relation to the above-listed alleged crimes and alleged perpetrators and move forward with other lines of inquiry.” Khan was quick to add, however, that “[c]omplementarity … requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham” (emphasis added).
Khan thus appears to have assessed that there is no reason to credit Israel’s representations that it stands ready to rigorously investigate such high-ranking officials, particularly not while the armed conflict is ongoing. If so, it is easy to understand why Khan might have reached such a view. Khan might well be right that there are very few, if any, authorities in Israel who would be willing to take seriously the possibility that the IDF and high-ranking Israeli officials have endeavored to implement a “common plan” to starve the civilian population of Gaza as a matter of state policy. The perspective of the Israel Bar Association in its submission to the Pre-Trial Chamber might be indicative of what most Israeli officials believe—namely, that because such a plan would be so manifestly unlawful, it could not possibly have been “instituted at the highest political echelon and implemented throughout the civilian and military authorities,” given “the system of legal advice” within the IDF and the Israeli judicial system. See also Prosecutor Khan’s submission ¶ 93 (quoting the May 24 statement of Israel’s Military Advocate General Yifat Tomer-Yerushalmi that “[t]he claim that Israel is engaging in the deliberate killing of civilians, … all the while the IDF works tirelessly to mitigate harm to the civilian population, is completely disconnected from reality”). Khan therefore might have assessed that there is virtually no chance Israeli authorities would seriously investigate Netanyahu and Gallant for such crimes, in which case a supplemental Article 18(1) notification would be a mere, wasteful formality that would only afford Israel an opportunity to delay the inevitable at the ICC.
Khan himself, however, presented his expert panel with evidence that was sufficient for them to publicly represent, unanimously, that there is a reasonable basis to conclude that Netanyahu and Gallant have done what may now appear to most Israelis to be virtually unimaginable. And Khan has submitted that same evidence to the Pre-Trial Chamber because (presumably) he believes the judges on that tribunal will conclude likewise. (Indeed, Khan represents that his evidence is sufficient to establish “a realistic prospect of conviction.”) Perhaps if he made the same (or a similar) case to Israeli authorities—that is, if he offered them compelling evidence of a “common plan” of deliberate starvation—they, too, could be persuaded that there is a reasonable basis to suspect that one or both of the named officials may have committed serious war crimes that warrant a thorough investigation. Indeed, the very point of the ICC system of “complementarity and cooperation” that Khan has recently lauded depends upon sharing information with state officials in order to encourage and facilitate such domestic investigations.
Therefore, I think it is at least possible that if the Pre-Trial Chamber agrees that Khan’s evidence demonstrates “reasonable grounds to believe” Netanyahu and/or Gallant committed one or more of the starvation-related offenses, it might nevertheless insist, in accord with the United States’ and Israel’s argument, that Khan must or should provide a more detailed notification to Israeli officials before the Pre-Trial Chamber decides whether to issue the arrest warrants that Prosecutor Khan has requested, even though there is hardly a guarantee that such a supplemental notification would have a material impact on the Pre-Trial Chamber’s ultimate decision.
Shany and Cohen are hopeful that if Khan does provide a supplemental, more detailed Article 18 notification, that could actually catalyze “the kind of political and legal dynamics required to advance a domestic investigation [in Israel] that could culminate” in the first known example of a state “criminally investigat[ing] the war-related conduct of its leaders in real time. … The Israeli government may have the will and ability to conduct independent investigations into the fact patterns and charges identified by the Prosecutor, that is, within realistic timeframes.”
This might seem implausible to many readers, but there might be something to it in light of a recent dispute within the Israeli government. On June 6, Israel Attorney General Gali Baharav-Miara wrote to Netanyahu to urge him to allow the establishment of a State Commission of Inquiry (COI) “as soon as possible” to investigate events occurring in the current war. “Our professional position,” she wrote, is that such a State COI “is the best means of dealing with the current risks at the international legal level, which, if they materialize, could lead to significant damage to the interests of the state, and of course to the prime minister and the security forces personally.”
A state COI can compel any person to testify before it, issue search warrants, and the like. At the end of its inquiry, a COI makes a determination about whether any individuals have acted wrongfully, and issues recommendations about how such persons should be treated. It may recommend, for example, termination from office, a ban on future appointments, or consideration by the Israeli Attorney General of the opening of a criminal investigation. Although the government is not required to adopt the COI’s recommendations, it has almost always done so. The Attorney General noted that it would be possible to ensure that such a COI give priority to early publication of conclusions concerning aspects of the war currently being examined by international courts (such as the ICC and ICJ). She further wrote that the COI could draw upon the assistance of foreign international law experts in its discussions.
Under Israeli law, it is up to the Government, i.e., the cabinet, whether to establish such a State COI but, once it has done so, the President of the Israel Supreme Court appoints the COI members, including a chair who must be a sitting or former judge. In this case the most likely choice would be Esther Hayut, who recently finished her tenure as Supreme Court President. Reportedly, however, Netanyahu is vehemently opposed to Hayut in light of her criticism of his recent efforts to overhaul the judiciary. And therefore, from all accounts, Netanyahu opposes the creation of a State COI. Apparently he prefers instead the creation of a commission whose members could be approved by the cabinet. Attorney General Baharav-Miara advised him that it is unlikely such an alternative commission would satisfy the conditions for postponing or displacing the ICC investigation—that a State COI is necessary because of its “unique characteristics,” including, “first and foremost, [its] complete disconnection from the executive authority.”
Although Netanyahu and Gallant probably would not participate in the vote about whether to establish a COI because they are the subjects of the ICC proceedings, the cabinet is unlikely to approve a COI without Netanyahu’s support, given that he controls the agenda for government meetings. And on June 7, Cabinet Secretary Yossi Fuchs wrote to Baharav-Miara to say that cabinet consideration of a State COI was premature.
Within the past couple of weeks, Attorney General Baharav-Miara once again wrote Netanyahu and other senior officials to implore them to allow creation of a State CIO forthwith in order to prevent the ICC issuance of international arrest warrants. A contrary decision would, she warned, “fundamentally contradict[] the government’s obligations to the public, and will be an extreme case that justifies [foreign] judicial intervention.” She noted that because “the international time window is closing,” a State COI should be established immediately.
In response, Justice Minister Yariv Levin, reportedly acting on Netanyahu’s behalf, has asked Baharav-Miara to open a criminal investigation against Netanyahu and Gallant without first establishing a State COI. According to one report, Netanyahu wants that investigation to open and then close with a report sent to the ICC that the charges had been investigated. According to another report, Baharav-Miara has rejected the Netanyahu request on the grounds that it would be understood as a blatant ploy and therefore would not satisfy the ICC.
So perhaps Shany and Cohen are right that if Khan were required to submit a supplemental notification, that might lead to a robust and independent Israeli investigation of Netanyahu and Gallant for joining a common plan to starve the Gaza civilian population and for permitting or even encouraging the use of lethal force in the service of that plan. I would be surprised if that were to occur, unless Khan points to extraordinarily compelling evidence of such crimes. Even if I am right about that, however, the Pre-Trial Chamber might conclude that the better course would be for Khan to present Israeli officials with at least some of the evidence supporting his extraordinary starvation-based allegations and afford them a few weeks to react and possibly to initiate investigations. That is, after all, what the Prosecutor did for Venezuela, despite the fact that there was virtually no chance the Maduro government would investigate the allegations there in a manner that would justify a deferral of the ICC process. And here, the Israel Attorney General already favors a State COI investigation of the allegations, and therefore such a development within the ICC might be sufficient to prompt the Israeli government to initiate a State COI, possibly followed by a criminal investigation.
On the other hand, if it turns out that Khan is right that Israel will not initiate investigations sufficient to justify an ICC deferral, then the principal downside of such a supplemental notification would be merely to extend the Pre-Trial Chamber process by a month or so. Meanwhile, however, such a supplemental notification would (at a minimum) enhance the legitimacy of, and support for, subsequent applications for arrest warrants, and would be in keeping with the complementarity principles of the Rome Statute. Such considerations might cause one or more of the judges on the Pre-Trial Chamber to consider whether to require Khan to provide a supplemental notification to Israel before it issues any arrest warrants.
In my next post, I will discuss the United States’ more fundamental argument that the ICC lacks jurisdiction to try Netanyahu and Gallant for alleged crimes in Gaza.
* Israel flags four categories of major deviations (footnotes omitted):
First, the crimes and the categories of crimes are different. The only alleged crime in the Article 18(1) Notification that could be characterised as being committed systematically, or as a matter of policy, is “the transfer of Israeli civilians into the West Bank.” This bears no relation to the degree of systematicity alleged in respect of a wide range of conduct of hostilities crimes, particularly starvation, and the crimes against humanity of extermination and persecution. Indeed, the Article 18(1) Notification does not refer to crimes against humanity.
Second, the underlying acts are fundamentally different. The acts that are alleged to have occurred since 7 October 2023 bear no meaningful relationship with the two sets of relatively circumscribed incidents described in the Article 18(1) Notification from 2014 and 2018. The scale and nature of these acts set out in the Article 18(1) Notification do not entail the conclusion that they were a reflection of State policy, whereas the acts now alleged would imply such a policy. This is again reflected in the absence of any reference in the Article 18(1) Notification to any acts that could amount to crimes against humanity.
Third, the potential perpetrators identified for investigation are substantially different. In respect of events in Gaza, the Article 18(1) Notification refers specifically to “members of the IDF.” No allegation is made that these crimes were committed as a matter of State policy or that they involved systematic orders by higher-ranking military officers, let alone civilian leadership. A more general reference is made in the Article 18(1) Notification to “Israeli authorities,” but—once again—only in relation to claimed violations of article 8(2)(b)(viii) in respect of the alleged transfer of Israeli civilians into the West Bank.
Fourth, the Article 18(1) Notification sets out time periods in relation to events in Gaza that are finite. Rather than referring to an “armed conflict” as being a defining parameter of the investigation, as in the Afghanistan Situation, notice is instead given of an investigation into two definite periods: the “2014 hostilities in Gaza” and “March 2018.” Even assuming that an article 18(1) notification, like an article 15(4) decision, may encompass future events, the nature of these time-frames strongly reinforce the understanding of the Prosecutor’s notice as concerning discrete and specific events, not a course of ongoing crimes being committed systematically in relation to an ongoing armed conflict. This stands in sharp contrast to the Prosecution’s current description of the continuity of the crisis: “Since at least 2008, Israel and Hamas have been engaged in a non-international armed conflict, entailing extensive and repeated airstrikes, the killing of civilians, the destruction of property.” Yet this description—most importantly the focus on a NIAC between Israel and Hamas—bears no relation to the scope of the investigation defined in the Article 18(1) Notification.
[1] Similarly, a group of former NATO military officers and cabinet ministers calling itself “The High Level Military Group,” which visited Gaza in July, submitted observations with the Pre-Trial Chamber expressing their “professional view that accusations of an intent to starve civilians by the Israeli Prime Minister and Minister of Defence are unsupported by all available evidence, most importantly by the actual conduct of IDF operations in and around Gaza.”
[2] The panel wrote that the evidence supporting this conclusion includes statements by Netanyahu and Gallant, as well as “statements of other Israeli officials,” and the fact that the Prime Minister and Defense Minister are “at the apex of the Israeli governmental apparatus, with effective authority and control over their subordinates and leadership positions in the War Cabinet and Security Cabinet, in which all key decisions on the conduct of the war—including blocking and limiting humanitarian aid—have been made.” They did not offer any further specificity, however. In an opinion (“declaration”) issued on March 28, Judge Nolte of the ICJ noted that he “take[s] very seriously” President Biden’s intimation, in his March 7 State of the Union address, that Israel might be using humanitarian assistance as a “bargaining chip.” There were at least some statements by Israeli officials, in the first two weeks of the Gaza campaign last October, that humanitarian aid was being (or should be) blocked in order to exert pressure on Hamas in negotiations. Energy Minister Israel Katz, for instance, tweeted on October 12 that “[n]o electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home. Humanitarian for humanitarian.” Five days later, National Security Minister Itamar Ben-Gvir tweeted that “[a]s long as Hamas does not release the hostages in its hands—the only thing that needs to enter Gaza are hundreds of tons of explosives from the Air Force, not an ounce of humanitarian aid.” And the U.S. State Department, in its May 20 Report to Congress, confirmed that “[s]ome senior Israeli government officials have been actively involved in encouraging protests against and attacks on aid convoys that delayed their entry into Gaza” (emphasis added). We have no way of knowing at this time whether President Biden’s statement or the tweets and other statements by Israeli officials are part of the submission Prosecutor Khan has made to the Pre-Trial Chamber and, if so, whether Khan has been able to show in addition that such statements reflected a “state policy” and a common plan that Netanyahu and Gallant joined, and whether such a plan persisted beyond the first weeks of the Israeli operation in Gaza.
[3] Gisha involves a petition filed on March 18 by five Israeli civil society organizations, challenging Israel’s policies and actions regarding the provision and distribution of humanitarian aid and activities in Gaza. As the ICC amicus submission of the Israel Bar Association explains, the petitioners in that case are seeking forward-looking injunctive relief, namely, an order for the respondents—including Netanyahu and Gallant—to enable access to all humanitarian aid, equipment and staff to Gaza and to significantly increase the flow of aid. As the Israel Bar Association brief details, the Israel Supreme Court has held hearings and required the petitioners and the respondents to file numerous submissions. Most recently, the Court has ordered the government to submit responses to questions from the Court and the petitioners’ latest submissions.
[4] Blinken also insisted that Khan’s decision is counterproductive even on its own terms because it “does nothing to help, and could jeopardize, ongoing efforts to reach a ceasefire agreement that would get hostages out and surge humanitarian assistance in.” That, however, is not part of the United States’s argument to the Pre-Trial Chamber.
[5] Former Canadian justice minister and attorney general Irwin Cotler, a longstanding supporter of the ICC who characterizes Khan as “a person of integrity and principle,” has strongly criticized Khan’s decision not to treat Israel with at least as much solicitude as he afforded Venezuela: “This all undermines the ICC as a court of last resort and as a court of limited jurisdiction,” said Cotler. “[I]t ends up regrettably prejudicing not only the international justice system in singling out the Israeli leadership, but also contributes to the overall weaponization of international law and international institutions.” Another longstanding supporter of the ICC, retired U.S. Ambassador David Sheffer, has expressed similar concerns. According to a report in the Wall Street Journal, Sheffer said that Khan’s cancelled trip to Israel “would have prompted specific inquiries by the ICC prosecutor about both specific military actions in Gaza and about the larger charge of starvation as a tactic of warfare.”
[6] Khan notes (¶ 105) “that the Prosecutor is not required only to investigate the acts or incidents identified in the … article 18(1) notification” and that “the Prosecutor’s investigation can extend to other and subsequent acts as long as they fall within the parameters of the situation, or in any event are sufficiently linked to it.” See also ¶ 99 (noting that “the preliminary examination findings [in the 2021 Article 18 letter] were made for the threshold-setting purpose of opening an investigation under article 53(1) and were without prejudice to the future investigation—which could encompass any crimes within the scope of the situation and could thus include subsequent crimes and incidents”). That is true. See Venezuela Appeal Decision ¶ 230 (“the obligation to provide sufficiently specific information in an article 18 notification does not limit in any way the Prosecutor’s future investigations”). The United States’s argument, however, is not that Khan’s investigation had to be limited to the contexts specified in the 2021 notification, but instead that arrest warrants should not be issued unless and until Israel is afforded an opportunity to investigate the officials in question based upon at least some effective notice of the nature of the alleged offenses and the evidence supporting the allegations.