I. Background

“On July 17, 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent International Criminal Court.”10 The Rome Statute entered into force on July 1, 2002, after ratification by 60 countries.11

“The ICC is composed of four primary organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.”12 The judiciary “consist[s] of eighteen judges organized into the Pre-Trial Division, the Trial Division, and the Appeals Division.”13 “The judges of each division are then divided into Chambers which are responsible for conducting the proceedings of the Court on specific cases and situations at different stages of the judicial procedure.”14 “The Pre-Trial Chamber plays an important role in the first phase of the judicial proceedings and makes the decision whether to confirm the charges against the potential accused.”15

“The Court may exercise jurisdiction in a situation where genocide, crimes against humanity or war crimes were committed on or after July 1, 2002 and: the crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court; or the crimes were referred to the ICC Prosecutor by the United Nations Security Council pursuant to a resolution adopted under chapter VII of the U.N. charter.”16

“In the absence of the United Nations Security Council referral, the Prosecutor may initiate an investigation on his own initiative or upon request from a State Party.”17 In addition to abiding by the aforementioned requirements, the ICC was founded to complement, not replace, national criminal systems; it only prosecutes cases when countries cannot or are unwilling to do so genuinely.18

This comment examines the judges’ decision on the “Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine” (territorial jurisdiction question in Palestine).19

“On January 1, 2015, the State of Palestine lodged a declaration under Article 12(3) of the Rome Statute, thereby accepting the jurisdiction of the Court over alleged crimes ‘committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.’ ”20 “On January 2, 2015, Palestine deposited its instrument of accession to the Statute with the Secretary General of the United Nations pursuant to Article 125(2) of the Rome Statute.”21 “On May 22, 2018, Palestine referred the Situation in the State of Palestine to the Prosecutor pursuant to articles 13(a) and 14 of the Statute.”22 “On May 24, 2018, the Presidency assigned the Situation in the State of Palestine to the Chamber.”23

“The Prosecutor is of the view ‘that the Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza.’ ”24 “However, the Prosecutor is ‘mindful of the unique history and circumstances of the Occupied Palestinian Territory’ and the fact that the question of Palestine’s statehood under international law does not appear to have been definitively resolved.”25 “Consequently, in order to facilitate and ensure a ‘cost-effective and expeditious conduct of the […] investigations,’ the Prosecutor ‘seeks confirmation’ of this conclusion by the Chamber pursuant to Article 19(3) of the Statute.”26

On February 5, 2021, Judges Marc Perrin de Brichambaut (Brichambaut) and Reine Adélaïde Sophie Alapini-Gansou (Gansou) found that “Palestine is a State Party to the Statute,” “Palestine qualifies as ‘[t]he State on the territory of which the conduct in question occurred’ for the purposes of Article 12(2)(a) of the Statute,” and “that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”27 Judge Péter Kovács (Kovács) dissented because he disagreed with Brichambaut’s and Gansou’s conclusions regarding “the geographical scope of the Court’s jurisdiction” and “whether Palestine can be considered ‘[t]he State on the territory of which the conduct in question occurred’ within the meaning of Article 12(2)(a) of the Statute.”28

II. Hypothesis

Judges are presumed to be impartial servants of the legal system, but scholars have proposed ulterior motives that influence judges in domestic courts such as their wealth, status, and political goals.29 National identity is an additional factor that is unique to judges who are appointed by their home country and adjudicate cases that carry global significance.30 National identity likely affects a judge’s decision-making in three different ways: psychologically, economically, or via selection effects.31

Psychologically, judges may find it difficult to maintain impartiality if they closely identify with their country.32 ICC judges are not only citizens who typically have strong emotional ties to their country; they also have dedicated their careers to their nation, serving as diplomats, legal advisors, judges, and politicians.33 Even the best-intentioned judges likely struggle adjudicating matters without considering the interests of their home country.34

Economically, judges may make decisions influenced by material incentives because judges who defy the will of their government may be penalized.35 Although a country cannot feasibly refuse the reappointment of their appointed judge, the government may refuse to give the judge a desirable job opportunity after the expiration of their term.36

A country will likely choose a judge that they can ensure is not too independent-minded by drawing from a pool of officials who have shown reliability and the appropriate attitudes—the selection effect.37 Although, this comment cannot claim with full certainty that the selection effect exists at the ICC, this comment highlights several findings to suggest its high probability. First, “[i]nterviews showed that states infrequently nominate judicial candidates to the ICC through the methods prescribed in the Rome Statute, but instead used ‘informal’ methods[.]”38 Second, a leading text on ICC elections noted that “[nomination processes] in most states [have] signs of overt politicization[.]”39 Third, “a number of states lack legislation regulating how judges are nominated for ICC elections; rather, nominations are often carried out on an ad hoc basis.”40 The lack of regulation has allowed for government ministers to directly contact personal acquaintances to become candidates, for nomination processes to be kept private, and for interviews not to be conducted.41

This comment does not decide which of the aforementioned reasons, if any, are true. Rather, this comment relies on these theories to hypothesize that judges in the ICC are influenced by the countries that appointed them.

III. Data

A. Judges

Gansou, Brichambaut, and Kovács adjudicated the territorial jurisdiction question in Palestine. The judges’ resumes and backgrounds evidence their knowledge of international law and their support for human rights. (See Section III(A), infra.) Their resumes also highlight their experiences, serving in various positions where they represented their country domestically or internationally.

1. Reine Adélaïde Sophie Alapini-Gansou

Gansou is a citizen of the Republic of Benin.42 The government of Benin appointed her, and she assumed her full-time duty on June 11, 2018.43

“Prior to joining the ICC in 2018, Gansou spent twelve years at the African Commission on Human and Peoples’ Rights, as Chair of the Commission (2009–2012) and as Special Rapporteur on the situation of human rights defenders in Africa (2005–2009 and 2012–2017).”44 “She has [also] been a member of several United Nations commissions of inquiries on human rights violations, and chaired the joint working group on special procedures of the United Nations and the African Commission on human and people’s rights.”45

2. Marc Perrin de Brichambaut

Brichambaut holds French nationality.46 The government of the French Republic appointed him, and he assumed his full-time duty on March 11, 2015.47

Brichambaut has been a member of the Conseil d’État since 1974.48 The Conseil d’État “advises the Government of France on the preparation of bills, ordinances, and certain decrees.”49 “It also answers the Government’s queries on legal affairs and conducts studies upon the request of the Government or through its own initiative regarding administrative or public policy issues.”50 It is also “the highest administrative jurisdiction—it is the final arbiter of cases relating to executive power, local authorities, independent public authorities, public administration agencies or any other agency invested with public authority.”51 He was also the “Director of Legal Affairs at the French Ministry of Foreign Affairs from 1994 to 1998.”52 He acted “as an advocate for the French Government before the European Court of Human Rights, the International Court of Justice, and the Court of Justice of the European Union.”53 He also “presented the French Government’s position to the United Nations Human Rights Committee.”54

3. Péter Kovács

Kovács holds Hungarian nationality.55 The government of Hungary appointed him, and he assumed his full-time duty on March 11, 2015.56

Kovács “served as a diplomat at the Hungarian Embassy in Paris between 1990–1994 and was head of the department of human rights & minority law at the Ministry of Foreign Affairs in 1998–1999.” “Between 2005–2014, he was judge of the Hungarian Constitutional Court.”57

B. States

1. Benin

This comment is unable to find clear statements from Benin to establish Benin’s position on the territorial jurisdiction question in Palestine. Nevertheless, instead of relying on variables such as region, wealth, culture, military, and political alliance, this comment utilizes Benin’s U.N. voting pattern, on matters related to Israel and Palestine, to more accurately understand Benin’s stance.

Benin’s U.N. voting pattern, on resolutions related to Israel and Palestine, from 2018–2022 and 2024 is the following.

In 2024, the U.N. resolution titled “Admission of New Members to the United Nations” “determines that the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to membership in the United Nations.”58 The resolution also “calls for renewed and coordinated efforts by the international community aimed at achieving without delay an end to the Israel occupation that began in 1967[.]”59 Benin voted in favor of the resolution and Israel voted against it.60

From 2018–2022, the U.N. passed four resolutions titled “Committee on the Exercise of the Inalienable Rights of the Palestinian People,” which “requests the Committee to continue to exert all efforts to promote the realization of the inalienable rights of the Palestinian people, including their right to self-determination, to support the achievement without delay of an end to the Israeli occupation that began in 1967 and of the two-State solution on the basis of the pre-1967 borders and the just resolution of all final status issues and to mobilize international support for and assistance to the Palestinian people.”61 In 2018, 2019, and 2022, Benin voted in favor of the resolution and in 2018,62 2019,63 2020,64 and 2022, Israel voted against it.65

From 2018–2022, the U.N. passed four resolutions titled “Division for Palestinian Rights of the Secretariat,” which:

[C]onsiders that, by providing substantive support to the Committee on the Exercise of the Inalienable Rights of the Palestinian People in the implementation of its mandate, the Division for Palestinian Rights of the Secretariat continues to make a constructive and positive contribution to raising international awareness of the question of Palestine and of the urgency of a peaceful settlement of the question of Palestine in all its aspects on the basis of international law and United Nations resolutions and the efforts being exerted in this regard and to generating international support for the rights of the Palestinian people.66

In 2018 and 2022, Benin voted in favor of the resolution and in 2018,67 2019,68 2020,69 and 2022, Israel voted against it.70

From 2018–2022, the U.N. passed fives resolutions titled “Peaceful settlement of the question of Palestine,” which:

[C]alls upon Israel, the occupying Power, to comply strictly with its obligations under international law and to cease all of its measures that are contrary to international law, including all unilateral actions in the Occupied Palestinian Territory, including East Jerusalem, that are aimed at altering the demographic composition, character and status of the Territory and thus at prejudging the final outcome of peace negotiations, and recalls in this regard the principle of the inadmissibility of the acquisition of land by force and therefore the illegality of the annexation of any part of the Occupied Palestinian Territory, including East Jerusalem, which constitutes a breach of international law, undermines the viability of the two-State solution and challenges the prospects for the achievement of a peaceful settlement and of just, lasting and comprehensive peace.71

In 2018, 2019, 2021, and 2022, Benin voted in favor of the resolution and in 2018,72 2019,73 2020,74 2021,75 and 2022, Israel voted against it.76

2. France

This comment argues that France was public, yet implicit, about its position on the territorial jurisdiction question in Palestine through its public actions and lack thereof.

On France’s governmental website, France makes several statements related to Israel and Palestine.77 For example, the website states that France “calls on Israel to fully comply with international humanitarian law, which applies in the Palestinian Territories.”78 It also states that “France and its European partners have drawn up the parameters that should oversee resolution of the conflict: borders based on the June 4, 1967 lines, with agreed equivalent land swaps” and “security arrangements preserving the sovereignty of the future Palestinian State[.]”79

“On March 18, 2021, Israeli President Reuven Rivlin and French President Emmanuel Macron held a diplomatic meeting in Paris as part of Rivlin’s European tour.”80 “The parties discussed key geostrategic issues such as the Iranian nuclear project, Iran’s interference in the region, the situation in Lebanon, the strengthening of Hezbollah, its aggressive intentions toward Israel, and Israel’s determination to thwart those intentions.”81 Some suggest that President Rivlin failed to accomplish its main purpose.82 President Rivlin was unable “to convince President Macron to support Israel’s stance regarding the recent decision by the International Criminal Court (ICC) in the Hague to open a criminal investigation into alleged war crimes by Israel in Gaza and other ‘Palestinian territories,’ as well as regarding Jewish localities in the West Bank.”

France’s lack of support is further highlighted by its inaction in response to the ICC’s decision. In contrast, European Union members such as Germany, the Czech Republic, Austria, and Hungary submitted official comments to the ICC supporting Israel’s position that the tribunal does not have jurisdiction over Israel.83

This comment does not rely on France’s U.N. voting pattern because this comment prefers to rely on France’s actions or lack thereof that are more revealing to the case. Moreover, unlike Benin’s U.N. voting pattern, it is difficult for this comment to make assumptions because France frequently abstained. This comment adds the data to remain consistent.

In 2024, France voted in favor of the U.N. resolution titled “Admission of New Members to the United Nations.”84 In 2018,85 2019,86 2020,87 and 2022, France voted to abstain from the U.N. resolution titled “Committee on the Exercise of the Inalienable Rights of the Palestinian People.”88 In 2018,89 2019,90 2020,91 and 2022, France voted to abstain from the U.N. resolution titled “Division for Palestinian Rights of the Secretariat.”92 In 2018,93 2019,94 2020,95 2021,96 and 2022, France voted in favor of the U.N. resolution titled “Peaceful settlement of the question of Palestine.”97

3. Hungary

This comment argues that Hungary publicly demonstrated its position on the territorial jurisdiction question in Palestine through its public statements.

On March 16, 2020, Hungary issued an amicus curiae observation, signed by Peter Sztaray, the State Secretary for Security Policy Ministry of Foreign Affairs and Trade of Hungary.98 Hungary summarized its position in the following:

• “Palestine does not fulfill yet all the consecutive elements of statehood.”99

• “Palestine does not possess the sovereign ability to prosecute.”100

• “Hungary believes that the Court shall stand on the basis of legality and shall refrain from the evaluation and the determination of highly political and controversial questions.”101

• “Hungary is of the view that the Palestinian question shall be settled directly between the parties also allowing for the two-state solution sought by the international community.”102

On March 4, 2021, Hungary issued a statement:

1. “the Hungarian Government has always disputed the decision of the Court that the territorial scope of its jurisdiction extends to Gaza, the West Bank and East Jerusalem”;

2. “in the proceedings Hungary submitted amicus curiae observations to the ICC that challenged Palestine’s criminal jurisdiction over Israeli citizens”;

3. “Hungary remains a staunch supporter of Israel’s right to defend herself”;

4. “Hungary sincerely believe[s] that lasting peace can only be achieved only through direct negotiations between the parties based on mutual respect”;

5. “the decision of the ICC does not take us closer to this”;

6. Hungary “supports the March 3 statement of Secretary of State Antony J. Blinken expressing commitment to Israel and its security.”103

This comment does not rely on Hungary’s U.N. voting pattern because this comment prefers to rely on Hungary’s actions that are more revealing to the case. However, unlike France’s U.N. voting pattern, Hungary’s U.N. voting pattern further demonstrates Hungary’s support for Israel on matters related to Israel and Palestine.

In 2024, Hungary voted against the U.N. resolution titled “Admission of New Members to the United Nations.”104 In 2018,105 2019,106 2020,107 and 2022, Hungary voted against the U.N. resolution titled “Committee on the Exercise of the Inalienable Rights of the Palestinian People.”108 In 2018,109 2019,110 2020,111 and 2022, Hungary voted against the U.N. resolution titled “Division for Palestinian Rights of the Secretariat.”112 In 2018,113 2019,114 2020,115 Hungary voted in favor of the U.N. resolution titled “Peaceful settlement of the question of Palestine” and in 2021116 and 2022, Hungary voted against it.”117

C. Results

On February 5, 2021, ICC judges collectively found Palestine to be a State Party to the Statute. Yet, ICC judges did not uniformly agree on “the geographical scope of the Court’s jurisdiction” and “whether Palestine can be considered ‘[t]he State on the territory of which the conduct in question occurred’ within the meaning of Article 12(2)(a) of the Statute.”118 This comment characterizes Brichambaut’s and Gansou’s finding as anti-Israel because their decision threatens the legitimacy of Israel’s borders and its citizens’ protection from ICC prosecution. This comment argues that the decision was not a coincidence.

1. Majority (Gansou & Benin)

This comment acknowledges that Benin made no public statements on the territorial jurisdiction question in Palestine. As a result, this comment cannot claim Benin’s position on the matter with full certainty. However, this comment relies on Benin’s U.N. voting pattern, on matters related to Israel and Palestine, to better understand Benin’s position.

Some may argue that the resolutions themselves are not anti-Israel but just pro-Palestine. Some may argue that the resolutions themselves are not even pro-Palestine but just pro-peace. This comment disagrees with the aforementioned arguments because the resolutions are objectively one-sided. The U.N. resolutions titled “Admission of New Members to the United Nations,” “Peaceful Settlement of the Question of Palestine,” and “Committee on the Exercise of the Inalienable Rights of the Palestinians People” call for, in different ways, the end of Israel’s occupation. The resolutions essentially call for Israel to give up land that it won in a war that it did not start. Moreover, the resolutions fail to provide context regarding the occupation and fail to hold the Palestinian leadership responsible for the problems occurring in Palestine.

One way to perceive Benin’s voting pattern is to highlight the fact that Benin supported resolutions that are arguably anti-Israel and pro-Palestine. Another way to perceive Benin’s voting pattern is to highlight the fact that Benin consistently voted against Israel on each of the aforementioned resolutions.

2. Majority (Brichambaut & France)

Unlike Benin, France was public, yet implicit, about its position on the territorial jurisdiction question in Palestine.

First, France’s website calls for Israel to comply with international humanitarian law, for the law to apply in the Palestinian Territories, and for the borders to revert to the pre-1967 lines.119 Some may argue that France is merely an unbiased actor who promotes peace. However, France’s public statements mirrored the one-sided nature of the U.N. resolutions, placing all the responsibility on Israel while failing to mention the Palestinian leadership. Moreover, France’s request to revert to the pre-1967 lines suggests that it recognizes the borders as they existed before 1967. The statements about Israel needing to abide by international law and returning land are very relevant to the territorial jurisdiction question in Palestine because Brichambaut decided that the ICC’s jurisdiction should apply to territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

Second, France failed to ever officially address the ICC’s jurisdiction nor communicate its position to the ICC. Some may argue that France’s inaction merely demonstrates its impartiality and general support for the ICC. This comment disagrees because the European Union countries who publicly spoke out were all State Parties to the Rome Statute, and being a State Party inherently demonstrates support for international law and the ICC.120

3. Dissent (Kovács & Hungary)

Hungary was very public and clear about its position on the territorial jurisdiction question in Palestine.

First, Hungary issued an amicus curiae observation on the territorial jurisdiction question in support of Israel. In addition to its amicus curiae observation, the Hungarian government issued a statement that affirmed its support for Israel and challenged the ICC’s jurisdiction. Kovács’s opinion mirrored Hungary’s position.

IV. Prediction

A. Background

This comment contends that the hypothesis is strongly supported. As a result, this comment suggests testing the hypothesis by predicting ICC judges’ decision regarding the prosecutor’s application for arrest warrants against Benjamin Netanyahu and Yoav Gallant.

On May 20, 2024, ICC Prosecutor Karim A.A. Khan (Khan) filed “applications for warrants of arrest before Pre-Trial Chamber I of the International Criminal Court in the Situation in the State of Palestine.”121 Khan stated he has:

[R]easonable grounds to believe that Yahya Sinwar (Head of Hamas in the Gaza Strip), Mohammed Diab Ibrahim Al-Masri (Commander-in-Chief of the military wing of Hamas), and Ismail Haniyeh (Head of Hamas Political Bureau) bear criminal responsibility for war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least October 7, 2023.122

Khan also stated he has:

[R]easonable grounds to believe that Benjamin Netanyahu (Prime Minister of Israel) and Yoav Gallant (Minister of Defense of Israel) bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least October 8, 2023.123

The prosecutor claimed that in presenting these applications for arrest warrants, his office is acting pursuant to its mandate under the Rome Statute:124

On February 5, 2021, Pre-Trial Chamber I decided that the Court can exercise its criminal jurisdiction in the Situation in the State of Palestine and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.125 […] This mandate is ongoing and includes the escalation of hostilities and violence since October 7, 2023.126

B. Judges

Gansou, Nicolas Guillou (Guillou), and Beti Hohler (Hohler) decided whether to approve Khan’s arrest warrant applications.

This comment acknowledges that Nicolas Guillou and Beti Hohler have less experience representing their respective home countries than Brichambaut and Kovács. Nevertheless, the hypothesis still applies because of the selection effect. The judges were still appointed by their respective country.

1. Reine Adélaïde Sophie Alapini-Gansou

Section (III)(A)(1) already provides Gansou’s background. This comment argues that Gansou will still be influenced by Benin.

2. Nicolas Guillou

Nicolas Guillou (Guillou) holds French nationality.127 The government of France appointed him, and he assumed his full-time duty on March 11, 2024.128

Before becoming an ICC judge, Guillou “worked as Chef de Cabinet to the President of the Special Tribunal for Lebanon (2015–2019) and as Liaison Prosecutor at the U.S. Department of Justice (2012–2015) where he facilitated judicial cooperation in criminal and civil matters.”129 “Between 2006 and 2012, Judge Guillou held several positions in the French Ministry of Justice—as Deputy Head of the Commercial Law Section, as Adviser to the Minister on Criminal Affairs and as Diplomatic Adviser to the Minister.”130

3. Beti Hohler

Beti Hohler (Hohler) holds Slovenian nationality.131 The government of Slovenia appointed her, and she assumed her full-time duty on March 11, 2024.132

Hohler started her career serving the Court of Appeals in Slovenia, “and thereafter as a senior associate at a prominent law firm.”133 Hohler “spent most of her career practicing law at international and internationalized criminal courts.” Before becoming a judge, “she was a Trial Lawyer in the Office of the Prosecutor of the ICC.”134

C. States

1. Benin

This comment cannot find clear statements from Benin to establish Benin’s position on the arrest warrant applications. This comment relies on its findings in Section (III)(B)(1).

2. France

The French government website states that “as regards Israel, it will be for the Court’s preliminary chamber to rule on the issuing of these warrants after examining the evidence put forward by the Prosecutor to back up his accusations, taking into account the principle of complementarity and possible action by the Israeli courts.”135 The website adds that “[f]or many months now, France has been warning about the imperative of strict compliance with international humanitarian law and particularly the unacceptable nature of the civilian losses in the Gaza Strip, and insufficient humanitarian access.”136 France concludes by stating that it “supports the International Criminal Court, its independence and the fight against impunity in every situation.”137

3. Slovenia

On September 16, 2024, President of the Republic of Slovenia H.E. Nataša Pirc Musar visited the International Criminal Court and met with ICC President Judge Tomoko Akane.138 During her visit, she “also met with Prosecutor Karim A. A. Khan KC, Registrar Osvaldo Zavala Giler, Judge Beti Hohler, and Executive Director of the Trust Fund for Victims, Deborah Ruiz Verduzco.”139 The ICC perceived President H.E. Nataša Pirc Musar’s visit as a sign of “Slovenia’s commitment to the Court and the joint efforts deployed in the fight against the impunity of the perpetrators of the most serious crimes that affect the international community as a whole.”140

In addition to the visit, the Slovenian Foreign Ministry publicly supported the arrest warrant applications against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.141 The Slovenian Foreign Ministry stated on X that “[w]ar crimes and crimes against humanity committed on the territory of Israel and Palestine from at least Oct. 7 2023 must be prosecuted independently and impartially regardless of the perpetrators.”142 The statements made by the ministry “underlined that Slovenia firmly supports the ICC and welcomes this advancement in the investigation of the recent situation in Palestine.”143

This comment does not rely on Slovenia’s U.N. voting pattern because this comment prefers to rely on Slovenia’s statements that are more revealing to the case. Moreover, unlike Benin’s U.N. voting pattern, it is difficult for this comment to make assumptions because Slovenia frequently abstained. This comment adds the data to remain consistent.

In 2024, Slovenia voted in favor of the U.N. resolution titled “Admission of New Members to the United Nations.”144 In 2018,145 2019,146 2020,147 and 2022 Slovenia voted to abstain from the U.N. resolution titled “Committee on the Exercise of the Inalienable Rights of the Palestinian People.”148 In 2018,149 2019,150 and 2022,151 Slovenia voted to abstain from the U.N. resolution titled “Division for Palestinian Rights of the Secretariat,” and in 2020, Slovenia voted against it.152 In 2018,153 2019,154 2020,155 and 2022,156 Slovenia voted in favor of the U.N. resolution titled “Peaceful settlement of the question of Palestine,” and in 2021, Slovenia voted to abstain.157

D. Results

This comment predicts a unanimous decision against Benjamin Netanyahu and Yoav Gallant.

1. Majority (Gansou & Benin)

This comment, relying on the logic it applied in Section (III)(C)(1), predicts that Gansou will decide against Israel.

2. Majority (Guillou & France)

France was not explicit about its position. However, France’s statements implied their support for the issuing of arrest warrants against Benjamin Netanyahu and Yoav Gallant. France claims to have warned Israel about upholding international law, highlighting the unacceptable nature of the civilian losses in the Gaza Strip and insufficient humanitarian access.158 This comment argues that France’s statement implies that Israel is solely responsible for the civilian losses in Gaza and the insufficient humanitarian access.

3. Majority (Hohler & Slovenia)

Slovenia was explicit in its support for the issuing of arrest warrants against Benjamin Netanyahu and Yoav Gallant. First, the Slovenian President’s visit to the ICC was perceived as a sign of support. Moreover, the Slovenian government publicly stated that the perpetrators who committed war crimes and crimes against humanity must be prosecuted, regardless of who they are. This suggests that Israel, more specifically Benjamin Netanyahu and Yoav Gallant should be held accountable.

V. Conclusion

ICC judges are influenced by the country that appointed them. This comment acknowledges that its analysis lacked a large sample size and that not all countries’ positions were explicitly stated. Nevertheless, this comment argues that, despite these factors, it is not just a coincidence that each judge reflected the position of its country in their decision. In further support, this comment’s prediction, based on its hypothesis, came to fruition when ICC judges unanimously decided to issue arrest warrants against Benjamin Netanyahu and Yoav Gallant on November 21, 2024.159

This comment highlights a very important factor: national identity. Some may argue that the hypothesis is simple because it ignores the other variables that may influence a judge’s decision. This comment acknowledges that there are various variables that may influence a judge’s decision, such as their upbringing and education. However, these variables are taken into consideration when the country appoints its judge. This comment concludes that ICC judges act politically because they are influenced by the interests of the country that appointed them.

Is it a problem for ICC judges to act politically? Put more specifically, is it a problem for ICC judges to consider the interests of the country that appointed them when they interpret the law? This comment leaves that question for the reader.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, The ICC at a Glance (Nov. 19, 2019), available online. ↩

2. 2.

   About the Court, ICC, available online (last visited Nov. 10, 2024). ↩

3. 3.

   International Criminal Court, Understanding the International Criminal Court (Mar. 16, 2021), available online. ↩

4. 4.

   Id. ↩

5. 5.

   The ICC at 20: Double Standards Have No Place in International Justice, Amnesty Int’l (Jul. 1, 2022), available online. ↩

6. 6.

   Michael R. Pompeo, U.S. Secretary of State, The International Criminal Court’s Illegitimate Prosecutions (May 15, 2020), available online. ↩

7. 7.

   See Eric A. Posner & Miguel F. P. de Figueiredo, Is the International Court of Justice Biased?, Chicago Unbound (Dec. 13, 2004), available online. ↩

8. 8.

   See id. ↩

9. 9.

   See Situation in the State of Palestine, ICC-01/18-143, Decision on the “Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine” (ICC PTC I, Feb. 5, 2021), available online. ↩

10. 10.

    The ICC at a Glance, supra note 1. ↩

11. 11.

    See id. ↩

12. 12.

    Structure of the ICC, ICC Proj. of ABA, available online (last visited Nov. 10, 2024). ↩

13. 13.

    Id. ↩

14. 14.

    Id. ↩

15. 15.

    Id. ↩

16. 16.

    How the Court Works, ICC, available online (last visited Nov. 10, 2024). ↩

17. 17.

    Id. ↩

18. 18.

    See id. ↩

19. 19.

    See Situation in the State of Palestine, supra note 9. ↩

20. 20.

    Id. ¶ 1. ↩

21. 21.

    Id. ¶ 2. ↩

22. 22.

    Id. ¶ 3. ↩

23. 23.

    Id. ¶ 4. ↩

24. 24.

    Id. ¶ 22. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Id. at 60. ↩

28. 28.

    See Situation in the State of Palestine, ICC-01/18-143-Anx1, Judge Péter Kovács’ Partly Dissenting Opinion, ¶ 2 (ICC PTC I, Feb. 5, 2021) [hereinafter Kovács’ Dissenting Opinion], available online. ↩

29. 29.

    See Posner & Figueiredo, supra note 7, at 11. ↩

30. 30.

    See id. ↩

31. 31.

    See id. ↩

32. 32.

    See id. ↩

33. 33.

    See id. ↩

34. 34.

    See id. ↩

35. 35.

    See id. ↩

36. 36.

    See id. ↩

37. 37.

    See id. ↩

38. 38.

    Yassir Al-Khudayri, Christian De Vos & Mariana Pena, OSJI, Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court (Oct. 28, 2019), available online. ↩

39. 39.

    Id. at 32. ↩

40. 40.

    Id. at 33. ↩

41. 41.

    See id. at 50. ↩

42. 42.

    See Judge Reine Alapini-Gansou, ICC, available online (last visited Nov. 10, 2024). ↩

43. 43.

    See id. ↩

44. 44.

    Id. ↩

45. 45.

    Id. ↩

46. 46.

    See Judge Marc Perrin de Brichambaut, ICC, available online (last visited Nov. 10, 2024). ↩

47. 47.

    See id. ↩

48. 48.

    See id. ↩

49. 49.

    Conseil D’État, Eur. L. Inst., available online (last visited Nov. 10, 2024). ↩

50. 50.

    Id. ↩

51. 51.

    Id. ↩

52. 52.

    Note Verbale from France to the Secretariat of the Assembly of State Parties, Nomination of Marc Pierre Perrin de Brichambaut for Judge of the ICC (Jul. 25, 2014), available online (trans.). ↩

53. 53.

    Id. ↩

54. 54.

    Id. ↩

55. 55.

    See Judge Péter Kovács, ICC, available online (last visited Nov. 10, 2024). ↩

56. 56.

    See id. ↩

57. 57.

    Id. ↩

58. 58.

    G.A. Res. ES-10/23, U.N. Doc. A/Res/ES-10/23, Admission of New Members to the United Nations, ¶ 1 (May 10, 2024) [hereinafter 2024 New Members], available online, votes recorded. ↩

59. 59.

    Id. ↩

60. 60.

    Id. ↩

61. 61.

    G.A. Res. 73/18, U.N. Doc. A/RES/73/18, Committee on the Exercise of the Inalienable Rights of the Palestinian People (Nov. 30, 2018) [hereinafter 2018 Inalienable Rights], available online, votes recorded; G.A. Res. 74/10, U.N. Doc. A/RES/74/10, Committee on the Exercise of the Inalienable Rights of the Palestinian People (Dec. 3, 2019) [hereinafter 2019 Inalienable Rights], available online, votes recorded; G.A. Res. 75/20, U.N. Doc. A/RES/75/20, Committee on the Exercise of the Inalienable Rights of the Palestinian People (Dec. 2, 2020) [hereinafter 2020 Inalienable Rights], available online, votes recorded; G.A. Res. 77/22, U.N. Doc. A/RES/77/22, Committee on the Exercise of the Inalienable Rights of the Palestinian People (Nov. 30, 2022) [hereinafter 2022 Inalienable Rights], available online, votes recorded. ↩

62. 62.

    2018 Inalienable Rights, supra note 61. ↩

63. 63.

    2019 Inalienable Rights, supra note 61. ↩

64. 64.

    2020 Inalienable Rights, supra note 61. ↩

65. 65.

    2022 Inalienable Rights, supra note 61. ↩

66. 66.

    G.A. Res. 73/21, U.N. Doc. A/RES/73/21, Division for Palestinian Rights of the Secretariat (Nov. 30, 2018) [hereinafter 2018 Palestinian Rights], available online, votes recorded; G.A. Res. 74/12, U.N. Doc. A/RES/74/12, Division for Palestinian Rights of the Secretariat (Dec. 3, 2019) [hereinafter 2019 Palestinian Rights], available online, votes recorded; G.A. Res. 75/21, U.N. Doc. A/RES/75/21, Division for Palestinian Rights of the Secretariat (Dec. 2, 2020) [hereinafter 2020 Palestinian Rights], available online, votes recorded; G.A. Res. 77/23, U.N. Doc. A/RES/77/23, Division for Palestinian Rights of the Secretariat (Nov. 30, 2022) [hereinafter 2022 Palestinian Rights], available online, votes recorded. ↩

67. 67.

    2018 Palestinian Rights, supra note 66. ↩

68. 68.

    2019 Palestinian Rights, supra note 66. ↩

69. 69.

    2020 Palestinian Rights, supra note 66. ↩

70. 70.

    2022 Palestinian Rights, supra note 66. ↩

71. 71.

    G.A. Res. 73/19, U.N. Doc. A/RES/73/19, Peaceful Settlement of the Question of Palestine (Nov. 30, 2018) [hereinafter 2018 Peaceful Settlement], available online, votes recorded; G.A. Res. 74/11, U.N. Doc. A/RES/74/11, Peaceful Settlement of the Question of Palestine (Dec. 3, 2019) [hereinafter 2019 Peaceful Settlement], available online, votes recorded; G.A. Res. 75/22, U.N. Doc. A/RES/75/22, Peaceful Settlement of the Question of Palestine (Dec. 2, 2020) [hereinafter 2020 Peaceful Settlement], available online, votes recorded; G.A. Res. 76/10, U.N. Doc. A/RES/76/10, Peaceful Settlement of the Question of Palestine (Dec. 1, 2021) [hereinafter 2021 Peaceful Settlement], available online, votes recorded; G.A. Res. 77/25, U.N. Doc. A/RES/77/25, Peaceful Settlement of the Question of Palestine (Nov. 30, 2022) [hereinafter 2022 Peaceful Settlement], available online, votes recorded. ↩

72. 72.

    2018 Peaceful Settlement, supra note 71. ↩

73. 73.

    2019 Peaceful Settlement, supra note 71. ↩

74. 74.

    2020 Peaceful Settlement, supra note 71. ↩

75. 75.

    2021 Peaceful Settlement, supra note 71. ↩

76. 76.

    2022 Peaceful Settlement, supra note 71. ↩

77. 77.

    Peace Process, France Dipl., available online (last visited Nov. 10, 2024). ↩

78. 78.

    Id. ↩

79. 79.

    Id. ↩

80. 80.

    Tsilla Hershco, Israel-France Relations in Light of the ICC Decision, BESA (Apr. 8, 2021), available online. ↩

81. 81.

    Id. ↩

82. 82.

    Id. ↩

83. 83.

    Id. ↩

84. 84.

    2024 New Members, supra note 58. ↩

85. 85.

    2018 Inalienable Rights, supra note 61. ↩

86. 86.

    2019 Inalienable Rights, supra note 61. ↩

87. 87.

    2020 Inalienable Rights, supra note 61. ↩

88. 88.

    2022 Inalienable Rights, supra note 61. ↩

89. 89.

    2018 Palestinian Rights, supra note 66. ↩

90. 90.

    2019 Palestinian Rights, supra note 66. ↩

91. 91.

    2020 Palestinian Rights, supra note 66. ↩

92. 92.

    2022 Palestinian Rights, supra note 66. ↩

93. 93.

    2018 Peaceful Settlement, supra note 71. ↩

94. 94.

    2019 Peaceful Settlement, supra note 71. ↩

95. 95.

    2020 Peaceful Settlement, supra note 71. ↩

96. 96.

    2021 Peaceful Settlement, supra note 71. ↩

97. 97.

    2022 Peaceful Settlement, supra note 71. ↩

98. 98.

    Situation in the State of Palestine, ICC-01/18-89, Written Observations by Hungary Pursuant to Rule 103 (ICC PTC I, Mar. 16, 2020), available online. ↩

99. 99.

    Id. ¶ 14. ↩

100. 100.

     Id. ¶ 15. ↩

101. 101.

     Id. ↩

102. 102.

     Id. ↩

103. 103.

     Government of Hungary, Hungary Opposes the March 3 Statement of the Prosecutor of the International Criminal Court (Mar. 4, 2021), available online. ↩

104. 104.

     2024 New Members, supra note 58. ↩

105. 105.

     2018 Inalienable Rights, supra note 61. ↩

106. 106.

     2019 Inalienable Rights, supra note 61. ↩

107. 107.

     2020 Inalienable Rights, supra note 61. ↩

108. 108.

     2022 Inalienable Rights, supra note 61. ↩

109. 109.

     2018 Palestinian Rights, supra note 66. ↩

110. 110.

     2019 Palestinian Rights, supra note 66. ↩

111. 111.

     2020 Palestinian Rights, supra note 66. ↩

112. 112.

     2022 Palestinian Rights, supra note 66. ↩

113. 113.

     2018 Peaceful Settlement, supra note 71. ↩

114. 114.

     2019 Peaceful Settlement, supra note 71. ↩

115. 115.

     2020 Peaceful Settlement, supra note 71. ↩

116. 116.

     2021 Peaceful Settlement, supra note 71. ↩

117. 117.

     2022 Peaceful Settlement, supra note 71. ↩

118. 118.

     Kovács’ Dissenting Opinion, supra note 28. ↩

119. 119.

     Peace Process, supra note 77. ↩

120. 120.

     The State Parties to the Rome Statute, ICC, available online (last visited Nov. 10, 2024). ↩

121. 121.

     Karim A.A. Khan, ICC Prosecutor, Statement on Applications for Arrest Warrants in the Situation in the State of Palestine (May 20, 2024), available online. ↩

122. 122.

     Id. ↩

123. 123.

     Id. ↩

124. 124.

     See id. ↩

125. 125.

     Id. ↩

126. 126.

     Id. ↩

127. 127.

     See Judge Nicolas Guillou, ICC, available online (last visited Nov. 10, 2024). ↩

128. 128.

     Id. ↩

129. 129.

     Id. ↩

130. 130.

     Id. ↩

131. 131.

     See Judge Beti Hohler, ICC, available online (last visited Nov. 10, 2024). ↩

132. 132.

     Id. ↩

133. 133.

     Id. ↩

134. 134.

     Id. ↩

135. 135.

     Prosecutor Applies to ICC for Arrest Warrants, France Dipl. (May 20, 2024), available online. ↩

136. 136.

     Id. ↩

137. 137.

     Id. ↩

138. 138.

     See Press Release, ICC, President of Slovenia Visits International Criminal Court (Sep. 16, 2024), available online. ↩

139. 139.

     Id. ↩

140. 140.

     Id. ↩

141. 141.

     See Zehra Nur Duz, Slovenia Supports ICC’s “Arrest Warrant” for Israeli Officials, Anadolu Agency, May 21, 2024, available online. ↩

142. 142.

     Id. ↩

143. 143.

     Id. ↩

144. 144.

     2024 New Members, supra note 58. ↩

145. 145.

     2018 Inalienable Rights, supra note 61. ↩

146. 146.

     2019 Inalienable Rights, supra note 61. ↩

147. 147.

     2020 Inalienable Rights, supra note 61. ↩

148. 148.

     2022 Inalienable Rights, supra note 61. ↩

149. 149.

     2018 Palestinian Rights, supra note 66. ↩

150. 150.

     2019 Palestinian Rights, supra note 66. ↩

151. 151.

     2022 Palestinian Rights, supra note 66. ↩

152. 152.

     2020 Palestinian Rights, supra note 66. ↩

153. 153.

     2018 Peaceful Settlement, supra note 71. ↩

154. 154.

     2019 Peaceful Settlement, supra note 71. ↩

155. 155.

     2020 Peaceful Settlement, supra note 71. ↩

156. 156.

     2022 Peaceful Settlement, supra note 71. ↩

157. 157.

     2021 Peaceful Settlement, supra note 71. ↩

158. 158.

     Prosecutor Applies to ICC for Arrest Warrants, supra note 135. ↩

159. 159.

     Press Release, ICC, Situation in the State of Palestine: ICC Pre-Trial Chamber I Rejects the State of Israel’s Challenges to Jurisdiction and Issues Warrants of Arrest for Benjamin Netanyahu and Yoav Gallant (Nov. 21, 2024), available online. ↩