ICC Forum

A Single Comment — Permalink

Comment on the Politics Question: “In what ways, and to what extent, is the International Criminal Court a political institution? In what ways have actors influenced or attempted to influence the ICC? Which ICC organs have been the targets of such efforts? Which actors, or groups of actors, have tried to influence the ICC? To what extent have those attempts succeeded?”

The People are Waiting for Justice: Impunity and International Rule of Law

Introduction

I am responding to the question of whether the International Criminal Court (ICC) is a political institution from the Twenty-third Session of the Assembly of State Parties (ASP) in The Hague, Netherlands, where approximately 124 member states, in addition to invited non-member states, and numerous non-governmental organizations (NGOs) gather each year for just under a week to hear from members of the Court and to share their national and organizational agendas, concerns, and reservations for the near and long-term future of the Court.

Two themes stand out to me regarding this question of whether the Court is a political institution because they have been raised in nearly every presentation and conversation of this year’s ASP: one, the unprecedented attacks on the Court, that are neither isolated, nor coming from a single state, and two, that the ICC is truly a court of last resort for communities that have endured unimaginable suffering in a world that has failed to intervene.

Our modern international systems were created in the aftermath of World War II and born out of a hope that we could build a shared future that centered the rights of human beings and where power could be held accountable. The ICC, established in 1998 through the Rome Statute1 and which entered into force in 2002,2 is the latest iteration of that hope. Sadly, today, only 22 years after the commencement of the Court’s activities, and only 76 years after articulating these hopes in the Universal Declaration of Human Rights,3 many of these same powers are openly and aggressively attempting to impede the work of the Court and dismantle our international systems in order to avoid accountability for atrocities they have committed against their fellow human beings.

There is no doubt that the ICC is inherently vulnerable to political pressures—it depends on the will and cooperation of member states to enforce the Court’s rulings and to fund everything from its daily functions, including protections from ever increasing cyber attacks, to reparations for victims. Furthermore, as an entity that is not under the United Nations, it lacks many of the levers and institutional supports that are enjoyed by its sister court, the International Court of Justice (ICJ).4 It is even fair to say that the Court, still establishing itself on the world stage and cognizant of its own fragility, is perhaps overly cautious and moving slower towards ending the impunity of powerful global actors than those affected may find acceptable—and, there is certainly truth to the saying, “justice delayed is justice denied.”5 Nevertheless, the Court’s inherent vulnerability to political pressures and the pace at which international accountability moves are not, and should not, be equated with an assertion that the Court is a political institution. Especially when the underlying critique in classifying the Court as a political institution is that it does not operate under the rule of law, or the doctrine that every person is equally subject to the law within its jurisdiction,6 but rather applies the law selectively based on the will of powerful actors or its own interests.

Expand

Powerful states attacking the Court have made little effort to do so discretely and two notorious actors that are currently leading efforts to delegitimize the Court in order to protect their impunity—through direct threats and actions and assertions that the Court is not acting under the rule of law—are the United States and Israel. This comment explores actions taken by these actors to politically influence the Court, primarily in the context of the most recent request for arrest warrants for the Situation in Palestine; how the ICC has responded according to the rule of law; and the broader impact of these efforts on the global community.

2024 Arrest Warrants for the Situation in Palestine

On May 20, 2024, ICC Prosecutor Karim A.A. Khan announced a request for arrest warrants for the Situation in the State of Palestine for Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the now former Minister of Defense of Israel, for “crimes committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy.”7 During the same announcement, and in fact prior to the statements regarding allegations of the culpability of these individuals, arrest warrants were requested for Yahya Sinwar, Head of the Islamic Resistance Movement in the Gaza Strip (Hamas), Mohammed Diab Ibrahim Al-Masri, Commander-in-Chief of the military wing of Hamas known as the Al-Qassam Brigades, and Ismail Haniyeh, Head of Hamas Political Bureau, for “war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine”8 from at least October 7, 2023. However, since the request for the issuance of arrest warrants, all of these Palestinian individuals have been extrajudicially killed by Israeli forces. 9, 10

In his statement on the request for arrest warrants, Prosecutor Karim Khan was careful to state that since the prior year, he had “consistently emphasized that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale,” that his “Office is acting pursuant to its mandate under the Rome Statute,” since the decision of the Pre-Trial Chamber I on February 5, 2021, which affirmed “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,” and that these “applications are the outcome of an independent and impartial investigation by [his] Office.”11 Perhaps most importantly, the Prosecutor included in his statement the same two key themes that I have heard raised in nearly every presentation at this year’s Assembly of State Parties as well as directly addressing whether the Court is operating under the rule of law or acting politically and the global consequences of the latter, stating that:

Today we once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader—no one—can act with impunity. Nothing can justify willfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.12

It is critical in this moment that my Office and all parts of the Court, including its independent judges, are permitted to conduct their work with full independence and impartiality. I insist that all attempts to impede, intimidate or improperly influence the officials of this Court must cease immediately. My Office will not hesitate to act pursuant to Article 70 of the Rome Statute if such conduct continues.

Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, we will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.

The political pressure that the Office of the Prosecutor is under from powerful actors because of this investigation, namely in Israel and the United States, is palpable in his statement in which he is careful to reiterate both the caution of the Office of the Prosecutor (OTP) over the last year and its established jurisdiction for crimes committed in the State of Palestine or by Palestinians in the State of Israel. What is also palpable is his awareness of the consequences to victims and to the hope for any international rule of law if the OTP were to cave to those pressures.

Six long months later,13 on November 21, 2024, the ICC made a decision to issue arrest warrants for the Situation in Palestine, finding that “there are reasonable grounds to believe that [Netanyahu and Gallant] has committed the war crime of using starvation as a method of warfare and crimes against humanity of murder, persecution, and other inhumane acts, as a direct perpetrator, acting jointly with others,” as well as “grounds to believe that they are each responsible for the war crime of intentionally directing attacks against civilians as a superior.” 14, 15 After addressing the judges confirmation that there were reasonable grounds that the asserted crimes had been committed and the warrants had been issued, Khan emphasized the importance of focusing on the victims of these international crimes and that the Court’s decision is an affirmation of the rule of law. He appealed “to all States Parties to live up to their commitment to the Rome Statute by respecting and complying with these judicial orders” and reiterated that, “[i]n line with the Rome Statute, the door to complementarity continues to remain open.”16 In his statement, the Prosecutor was clearly aware of the Court’s precarious positioning on the political stage and was directing his remarks to the spectrum of relevant stakeholders. This includes members of the public and NGOs, that have perhaps been the most vocal about the unfolding atrocities,17 to the 124 nation-states that constitute the Assembly of State Parties, including the State of Palestine. Additionally, the Prosecutor was directly appealing to the State of Israel in his reminder of complementarity, a core principle of the Court which the Office of the Prosecutor has emphasized as a key pathway for accountability through the April 25, 2024 launch of the Office of the Prosecutor’s Policy on Complementary and Cooperation.18

In a further and clear assertion of the Court’s intent to adhere to the rule of law, Khan also stated that:

[his] Office is continuing to pursue its independent and impartial investigation in the situation in the State of Palestine with focus, […] taking forward additional lines of inquiry in areas under the Court’s jurisdiction, which include Gaza and the West Bank, including East Jerusalem […] [and] continu[ing] to carry out [the ICC] mandate in order to fulfill the fundamental commitment forming the basis of the Rome Statute: that the lives of all human beings have equal value.19

In response to the ICC’s efforts to function under the rule of law, Israel and the United States, its closest ally and co-perpetrator of these alleged crimes, have responded by intensifying their attacks on the Court and international rule of law.

History of Palestinian Appeals to ICC

In 2009, the Palestinian Authority government first lodged a declaration under Article 12(3) of the Rome Statute allowing the ICC jurisdiction retrospectively for “acts committed on the territory of Palestine since July 1, 2002.” Three years later, in April 2012, the first ICC Prosecutor, Luis Moreno Ocampo, determined that the Office of the Prosecutor could not accept Palestine’s declaration, stating that “Palestine could have not been considered a State for the purposes of the Rome Statute.”20 Shortly thereafter, on November 29, 2012, the United Nations General Assembly voted overwhelmingly to accord Palestine “Non-Member Observer State” status in the United Nations. 21, 22 Following the 2014 Israeli-Palestinian Conflict,23 on January 1, 2015, the Government of Palestine lodged another declaration under Article 12(3) of the Rome Statute, accepting the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”24 Finally, on January 2, 2015, “Palestine acceded to the Rome Statute by depositing its instrument of accession with the U.N. Secretary-General [and t]he Rome Statute entered into force for Palestine on 1 April 2015.”25

Pursuant to Articles 13(a) and 14 of the Rome Statute, on May 22, 2018, Palestine referred the Situation in Palestine for investigation by the Office of the Prosecutor and specifically requested the Prosecutor “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the Court’s jurisdiction, committed in all parts of the territory of the State of Palestine,”26 specifying that “[t]he State of Palestine comprises the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, [which] includes the West Bank, including East Jerusalem, and the Gaza Strip.”27 On December 20, 2019, the Prosecutor announced that “following a thorough, independent and objective assessment of the reliable information available to the Office, the preliminary examination into this Situation had concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation had been met.”28 The Prosecutor also clarified that the Office is satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.29

Rather than pursuing the case directly, on January 22, 2020, the Prosecutor made a request to Pre-Trial Chamber I for a ruling to clarify the territorial scope of the Court’s jurisdiction in this Situation, considering the complex legal and factual issues attaching to the Situation in Palestine.30 The following month, on February 5, 2021, the ICC Pre-Trial Chamber I, “after considering the Prosecutor’s Request, as well as submissions from legal representatives on behalf of victims, States, organisations and scholars, decided, by majority, 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.”31 The Pre-Trial Chamber I’s 2–1 decision largely aligned with the OTP on the question of jurisdiction and the related issue of statehood, and made, in essence, three major points with regard to the Court’s jurisdiction in Palestine. Firstly, the chamber ruled that the State of Palestine, without prejudice as to its status under international law more generally, is entitled to be treated as a fully valid state party to the Rome Statute.”32 Secondly, “drawing on the right of the Palestinian people to self-determination, the chamber confirmed that the territory of the State of Palestine, as a state party, is the West Bank, including East Jerusalem, and the Gaza Strip.”33 Thirdly, “the chamber held that the Oslo Accords of 1993 and subsequent agreements create no legal barrier to the Court’s jurisdiction, including over suspected Israeli perpetrators.”34 Nearly three years after Palestine submitted its last referral and just three months before the end of Bensouda’s term as ICC Prosecutor, on March 3, 2021, the OTP announced the initiation of an investigation into the Situation in the State of Palestine.35

From the end of Bensouda’s term until October 30, 2023, no public statements were made by the Court or the Office of the Prosecutor on the investigation, though Khan stated that when he became Prosecutor in June 2021, he “established for the first time a dedicated team to investigate the Palestine situation. And for the last two years, as [he had] been calling, requesting, pleading for additional resources, [and he had] also been steadily increasing the resources and personnel for the Palestine investigation.”36 Then, on November 17, 2023, the OTP received a further referral for the Situation in the State of Palestine from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti.37 On receipt of the referral, the Prosecutor confirmed that it was conducting an investigation into the Situation in the State of Palestine, “which remains ongoing and extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023.”38 On January 18, 2024, the Republic of Chile and the United Mexican State additionally submitted a referral to the OTP for the Situation in the State of Palestine and reiterated their commitment to cooperate with the Court.39 As discussed previously, on May 20, 2024, the OTP filed applications for warrants for arrest related to the Situation in the State of Palestine and on November 21, 2024, ICC Pre-Trial Chamber I issued the relevant warrants.40

In addition to the activities within the ICC, and within the context of continued impunity, it is worth noting that since 2000, “the U.N. has established no less than ten investigatory mechanisms into violations against Palestinians.”41 While a number of these mechanisms were abandoned due to lack of access and noncooperation on Israel’s part, substantial reports were produced by, among other efforts, the so-called Goldstone Commission in 2009,42 the commission of inquiry on the Gaza conflict in 201443 and, the commission of inquiry on the Great March of Return demonstrations in Gaza.44 Israeli’s conduct was similarly examined in 2004 by the International Court of Justice (ICJ), which handed down its advisory opinion detailing the illegality of Israel’s annexation wall and the settlements erected in the West Bank, including East Jerusalem.45 There are also several relevant cases currently before the ICJ including Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany, 2024), Application of the Convention of the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), and Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (2024).46 Over the decades, each of these entities have given detailed recommendations for “how states ought to address Israel’s treatment of Palestinians, including the imposition of international sanctions and the investigation and prosecution of suspected perpetrators.”47 However, to date, none of these rulings, resolutions, or recommendations have ever been implemented by the respective constituent states, by the international community at large, or by the State of Israel.48

Attacks on the ICC

While every state, even non-member states to the Rome Statute, have the right to voice their opinions about the work of the ICC, Israel and the United States have gone to far greater extremes when it comes to the Situation in Palestine. A recent investigation by the Guardian, the Israeli-Palestinian publication +972 Magazine, and the Hebrew-language outlet Local Call, revealed that “multiple Israel intelligence agencies ran a covert ‘war’ against the ICC for almost a decade,” beginning with the OTP’s opening of an investigation in 2015.49 The investigation found that in February of 2015, “two unknown men showed up at Bensouda’s residence in The Hague and gave her cash and an Israeli phone, saying it was a gift from an unknown German woman. The ICC concluded this was likely Israel’s way of telling Bensouda it “knew where she lived.”50 The same investigation revealed that between 2017 to 2019, “an Israeli delegation conducted secret meetings with the ICC,” challenging Bensouda’s jurisdiction over Palestine, and from 2019 to 2021, Yossi Cohen, the former head of Israel’s foreign intelligence agency (the Mossad), intensified efforts to persuade the Prosecutor against the investigation to the extent that Bensouda formally disclosed to a small group within the ICC that she had been “personally threatened”.51 Sources familiar with the Mossad’s activities told the Guardian that during that same time, the spy agency “routinely listened to phone calls between Bensouda and her staff and Palestinians. Israeli operatives also hacked into the emails of Palestinian groups in contact with the ICC, and the Mossad obtained classified recording transcripts of Bensouda’s husband.”52 According to the report, “one individual briefed on Cohen’s activities said he had used ‘despicable tactics’ against Bensouda as part of an ultimately unsuccessful effort to intimidate and influence her and ‘likened his behavior to stalking.’ ”53

Outside of the ICC, in March of 2020, “an Israeli government delegation reportedly held discussions in Washington, D.C. with senior U.S. officials about “a joint Israeli-American struggle” against the ICC.”54 Shortly thereafter, in June of 2020, former U.S. Secretary of State Mike Pompeo announced that the United States was imposing sanctions on Bensouda and the Court’s head of jurisdiction, Phakiso Mochochoko, who was assisting with an investigation into possible war crimes committed by the United States and its allies in Afghanistan.55 Although the Biden administration lifted the sanctions against Bensouda in April of 2021, the United States and Israel continued to challenge the ICC’s authority to investigate possible war crimes in Palestine.56 In April 2024, just prior to the current Prosecutor’s request for warrants for the Situation in Palestine was announced, Netanyahu called on “leaders of the free world” to oppose possible arrest warrants by the ICC of Israeli officials.57 Throughout the work of the Court, as has been the case with nearly every other international examination of the conditions imposed on Palestinians by Israel, Netanyahu and other Israeli leaders have repeatedly denounced any assertions of violations of international law by Israelis as “pure antisemitism” and even “blood libel.”58

The United States, for its part, had initially signed the Rome Statute under former President Bill Clinton and “unsigned” the Statute under former President George W. Bush.59 Former President Bush lead an aggressive campaign against the ICC which not only included attempts to pressure governments around the world to enter into bilateral agreements requiring them not to surrender U.S. nationals to the ICC,60 but also attempted to intimidate countries, namely the Netherlands, with the passage of the 2002 American Service Members Protection Act, commonly known as the Hague Invasion Act, which in addition to authorizing the use of military force to “liberate any American or citizen of a U.S.-allied country being held by the court” also allowed for the withdrawal of U.S. military assistance from countries ratifying the ICC Treaty, and restricted U.S. participation in United Nations peacekeeping, unless the United States obtained immunity from prosecution.61 Likewise, in addition to sanctions placed on ICC staff in 2020 under the Trump administration, the former president, soon to enter into the White House for his second term, announced to the U.N. General Assembly that the “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.”62 Additionally, on May 15, 2020, Secretary Pompeo “vowed to ‘exact consequences’ if the ICC ‘continues down its current course’—that is, if the court moves forward with a Palestine investigation.”63

More recently, on June 4, 2024, the U.S. House of Representatives passed H.R. 8282, referred to as the “Illegitimate Court Counteraction Act”64 by a vote of 247–155.65 The legislation mandates that the President shall sanction anyone attempting to investigate an American or an American ally, including fining or jailing for up to twenty years anyone that communications with a sanctioned person.66 The legislation is so broad that it actually targets commercial sources including entities providing IT services to the Court, which would likely impact every investigation and case currently under the purview of the Court. And, of course, the sanctions would also extend to victims aiding the ICC in their investigations, which would have a chilling effect on individuals that have turned to the Court as their last resort. While those watching this legislation expected to see it come into force in the early days of the next Trump administration, there are now, as of this writing in mid-December 2024, reports that the legislation could pass as early as next week under President Biden through being attached to the National Defense Operation Act currently moving through Congress.

These disdainful and aggressive attacks from the United States on the ICC were recently epitomized in a statement made by U.S. Senator Lindsey Graham on November 27, 2024, who just last year praised the Court for its issuance of an arrest warrant for Vladimir Putin, when he stated from Jerusalem, “The Rome Statute doesn’t apply to Israel, or the United States, or France, or Germany, or Great Britain, because it wasn’t conceived to come after us.”67 Just days before that statement was made, in an interview with Fox News, Graham also threatened sanctions on any nation states that attempted to fulfill their own obligations to the Court stating, “To any ally—Canada, Britain, Germany, France—if you try to help the ICC, we’re going to sanction you.”68

Impacts on the International Community

These unprecedented attacks are even more alarming because they are increasingly expanding beyond the Court itself and threatening members of civil society, including human rights defenders and the victims themselves. Furthermore, these attacks are multilayered, including direct threats by states, the cutting of Court funding for its administration and for reparations to victims, listing those attempting to provide legal support to the Court or assistance to victims as terrorist organizations, espionage, and various public campaigns to frame the Court as corrupt or illegitimate. During this year’s Twenty-third Assembly of State Parties, from the opening statements of the President of the Court to nearly every side event, speakers referred to the danger facing the ICC because these threats are an existential crisis to the Court and to the international rule of law. It is also critical to acknowledge that these threats are not and have not been limited to the ICC but are part of attacks on the international legal system as a whole, including attacks on the ICJ, a growing dysfunction in the U.N. Security Council primarily through the actions of the permanent members, and attacks on the U.N. system as a whole, driven by state interests that are increasingly unaligned with the international system of cooperation.

Indeed, many have seen the Situation in the State of Palestine as a test case for whether or not the international rule of law, that much of the world has been aspiring to, will survive and, even more fundamentally, whether the international legal system that we have designed is truly intended to move us toward equality or whether it was simply a “noble way to repackage colonialism and hegemony.”69 What the United States and Israel do not realize, or maybe do not care about, is that how the world responds to what has been referred to as “the first livestreamed genocide” will have a domino effect, in which this “livestreamed genocide” will be the first but not the last and will likely take on evermore inhumane forms. This is because unchecked violence serves to inspire more, and often great, violence. In fact, Prime Minister Netanyahu in a recent call with President Biden attempted to justify mass bombing of civilians through U.S. activity during WWII stating, “Well, you carpet-bombed Germany. You dropped the atom bomb. A lot of civilians died.”70 Logically, this is a fair conclusion—not only was the United States never held accountable for those attacks on civilians, or for any other attacks, we actually made moral arguments to justify those atrocities to the world. From the perspective of a shared humanity, the reality is that while that kind of impunity protects a few from legal accountability, it inevitably harms many more and the harm is usually far more inhumane. For anyone that has ever sat with victims of atrocities, especially those that have suffered for generation after generation with their pleas for justice falling on deaf ears, efforts to continue committing those atrocities with impunity are hard to see as anything more than the most shameful, selfish, and cowardly part of who we are as human beings.

Responses to Attacks and Non-Adherence

Perhaps what the Situation in Palestine and the responses from Israel and the United States to the Court’s efforts to follow its mandate have laid bare most of all is that the international community, within our present systems, is not equipped to deal with this situation. While there seems to be a profound conviction around most of the world that something must be done, there is also a sense that, other than powerful nations attempting to impede the Court, most of whom are not parties to the Rome Statute, individual member states of the ASP are doing very little to support the Court, despite an obligation to cooperate under Article 86. State-party efforts to pick and choose when they will cooperate, and the even more alarming effort to create what some have called an Israeli exception to the Rome Statute, only serve to undermine the international legal system as a whole. Indeed, as every one of the 124 nation-states that are members of the Rome Statute are also members of the Genocide Convention71 and the Geneva Conventions,72 these states have obligations with respect to Palestine beyond the ICC that most are failing to adhere to. This is because, as South Africa raised in its application to the ICJ, not only do states have the duty to punish the crime of genocide, they also have the duty to take measures to prevent genocide. This means that once there is a question of genocide, whether it has been affirmed by a legal body or not, states are compelled to act within their respective means for the prevention of genocide. As such, many entities are now calling on the OTP to expand the scope of the charges to include genocide and to add additional warrants for arrest. Furthermore, many are hoping to see the enforcement of Article 70 of the Rome Statute in response to state actors such as the United States directly attempting to impede the work of the Court. While an application of Article 70 to a U.S. President such as Donald Trump, or even potential charges of aiding and abetting, are unlikely to lead to an arrest by member states, many states may be likely to ask the President not to come to their country because hosting him would be inconsistent with their obligations under the Rome Statute, which would negatively impact the standing of the United States on the world stage.

States wishing to uphold the promise of an international rule of law and adhere to their responsibilities under the Rome Statute could also adopt clear and unambiguous domestic laws which support their obligations to arrest those for whom arrest warrants have been issued, including sitting heads of state, as affirmed in the Situation in Darfur73 and clarified in the Court’s findings on Mongolia’s failure to cooperate with the arrest warrant for Vladimir Putin, the latter of which also affirmed that states’ obligations to the Rome Statute supersede obligations between states.74 Domestic courts can also aid the work of the Court through increasing universal jurisdiction of related charges and giving precedent to the rights of victims. Regarding member states that refuse to adhere to their obligations, in addition to legal proceedings by the Court, states can use diplomatic efforts to persuade non-cooperating members, or refer disputes to the ASP under Article 119 of the Rome Statute, which allows for disputes to be referred to states parties to make a recommendation or to refer the dispute to the ICJ. Ultimately, whether and how member states respond to their obligations and attacks on the Court from member and non-member states will determine the credibility and legitimacy of not only the Court but the current international legal order as a whole, impacting an untold number of victims from around the world that have endured unimaginable suffering and for whom the ICC is truly a court of last resort.

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

  1. 1.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 71, available online. ↩

  2. 2.

    Id. ↩

  3. 3.

    G.A. Res. 217(A)(III), U.N. Doc. A/810, Universal Declaration of Human Rights (Dec. 10, 1948), available online; archived. ↩

  4. 4.

    United Nations Charter, available online.

    Statute of the International Court of Justice, 59 Stat. 103 (Jun. 26, 1945) [hereinafter ICJ Statute], available online.. ↩

  5. 5.

    Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16, 1963), available online. ↩

  6. 6.

    Rule of Law, L. Dict., available online (last visited Dec. 11, 2024). ↩

  7. 7.

    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

    (alleging Benjamin Netanyahu and Yoav Gallant committed crimes including: starvation of civilians as a method of warfare as a war crime contrary to Art. 8(2)(b)(xxv) of the Statute; willfully causing great suffering, or serious injury to body or health contrary to Art. 8(2)(a)(iii), or cruel treatment as a war crime contrary to Art. 8(2)(c)(i); willful killing contrary to Art. 8(2)(a)(i), or murder as a war crime contrary to Art. 8(2)(c)(i); intentionally directing attacks against a civilian population as a war crime contrary to Arts. 8(2)(b)(i) or 8(2)(e)(i); extermination and/or murder contrary to Arts. 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity; persecution as a crime against humanity contrary to Art. 7(1)(h); and other inhumane acts as crimes against humanity contrary to Art. 7(1)(k)). ↩

  8. 8.

    Id.

    (alleging Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh committed crimes including: extermination as a crime against humanity, contrary to Art. 7(1)(b) of the Rome Statute; murder as a crime against humanity, contrary to Art. 7(1)(a), and as a war crime, contrary to Art. 8(2)(c)(i); taking hostages as a war crime, contrary to Art. 8(2)(c)(iii); rape and other acts of sexual violence as crimes against humanity, contrary to Art. 7(1)(g), and also as war crimes pursuant to Art. 8(2)(e)(vi) in the context of captivity; torture as a crime against humanity, contrary to Art. 7(1)(f), and also as a war crime, contrary to Art. 8(2)(c)(i), in the context of captivity; other inhumane acts as a crime against humanity, contrary to Art. 7(l)(k), in the context of captivity; cruel treatment as a war crime contrary to Art. 8(2)(c)(i), in the context of captivity; and outrages upon personal dignity as a war crime, contrary to Art. 8(2)(c)(ii), in the context of captivity). ↩

  9. 9.

    Id. ↩

  10. 10.

    Id.

    (Applications for warrants of arrest for Yahya Sinwar, then Head of Hamas in the Gaza Strip, and Ismail Haniyeh, former Head of the Hamas Political Bureau, were later withdrawn following evidence confirming their deaths. The application for Mohammed Diab Ibrahim Al-Masri was issued as, although he is presumed to also have been killed by Israel forces, his death has yet to be confirmed by the ICC). ↩

  11. 11.

    Id. ↩

  12. 12.

    Id. ↩

  13. 13.

    Situation in Palestine, ICC-01/18, Request by the United Kingdom for Leave to Submit Written Observations Pursuant to Rule 103 (ICC PTC I, Jun. 10, 2024), available online; Patrick Wintour, No 10 Fears ICC Will Ask UK to Sign Benjamin Netanyahu Arrest Warrant, The Guardian, Sep. 20, 2024, available online.

    (On June 10, 2024, the United Kingdom, [under the Conservative government] filed a request to provide written amicus curiae observations on “[w]hether the Court can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords.” Although the UK later withdrew its objections on July 26, 2024, under the Labour government, the Court’s decision to grant leave for requests to present amicus curiae observations by the UK, as well as various other member-states, international organizations, victim representatives, and human rights groups significantly delayed the Court’s decision, despite the imperative from the Office of the Prosecutor that the issuance “of the arrest warrant was of the utmost urgency.”). ↩

  14. 14.

    Karim A.A. Khan, ICC Prosecutor, Statement of ICC Prosecutor on the Issuance of Arrest Warrants in the Situation in the State of Palestine (Nov. 21, 2024) [hereinafter Issuance of Arrest Warrants], available online. ↩

  15. 15.

    Press Release, ICC, Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (Mar. 17, 2023), available online.

    (It is worth noting that, in contrast, the request for arrest warrants for Putin and Lvova-Belova for the Situation in Ukraine were requested on February 22, 2023 and issued just three weeks later on March 17, 2023 for the “crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.”). ↩

  16. 16.

    Issuance of Arrest Warrants, supra note 14. ↩

  17. 17.

    Amnesty International, Amnesty International Investigation Concludes Israel Is Committing Genocide Against Palestinians in Gaza (Dec. 5, 2024), available online.

    (Recently, Amnesty International, perhaps the most respected Human Rights organization in the world, released a report concluding that Israel is committing genocide against Palestinians in Gaza after examining “Israel’s violations in Gaza over nine months between 7 October 2023 and early July 2024,” which has included treating Palestinians in Gaza as “subhuman group unworthy of human rights.”). ↩

  18. 18.

    Office of the Prosecutor, ICC, Policy on Complementarity and Cooperation (Apr. 2024), available online. ↩

  19. 19.

    Issuance of Arrest Warrants, supra note 14. ↩

  20. 20.

    Palestine and the Rome Statute, PGA, available online (last visited Dec. 5, 2024). ↩

  21. 21.

    Press Release, G.A., GA/11317, General Assembly Votes Overwhelmingly to Accord Palestine “Non-Member Observer State” Status in United Nations (Nov. 29, 2012), available online.

    (The vote held in the Sixty-seventh General Assembly included 138 member states in favor, 9 against [Canada, Czech Republic, Israel, Marshall Islands, Federated States of Micronesia, Nauru, Panama, Palau, United States], and 41 abstentions). ↩

  22. 22.

    The Question of Palestine and the General Assembly, G.A., available online (last visited Dec. 11, 2024)

    (providing an historical overview of Palestine’s relationship with the United Nations General Assembly). ↩

  23. 23.

    World Report 2014: Israel and Palestine, HRW, available online (last visited Dec. 11, 2024). ↩

  24. 24.

    State of Palestine, ICC, available online (last visited Dec. 11, 2024). ↩

  25. 25.

    Information for Victims: State of Palestine, ICC, available online (last visited Dec. 11, 2024). ↩

  26. 26.

    Pearce Clancy & Richard Falk, The ICC and Palestine: Breakthrough and End of the Road?, 50 J. Palestine Stud. 56 (2021), paywall, doi.

    (Under the terms of its accession, the State of Palestine provided the Court with temporal jurisdiction beginning on June 13, 2014, meaning that the Court may only consider crimes committed on or since this date). ↩

  27. 27.

    Information for Victims: State of Palestine, supra note 25. ↩

  28. 28.

    Fatou Bensouda, ICC Prosecutor, Statement on the Conclusion of the Preliminary Examination of the Situation in Palestine, and Seeking a Ruling on the Scope of the Court’s Territorial Jurisdiction (Dec. 20, 2019), available online. ↩

  29. 29.

    Information for Victims: State of Palestine, supra note 25. ↩

  30. 30.

    Situation in the State of Palestine, ICC-01/18, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (ICC PTC I, Jan. 22, 2020), available online. ↩

  31. 31.

    Situation in the State of Palestine, ICC-01/18, 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. ↩

  32. 32.

    United Nations Committee on the Elimination of Racial Discrimination, CERD/C/100/5, Inter-State communication submitted by the State of Palestine against Israel: decision on jurisdiction (Dec. 12, 2019), available online.

    (CERD took a similar approach).

    Clancy & Falk, supra note 26. ↩

  33. 33.

    Clancy & Falk, supra note 26. ↩

  34. 34.

    Id. ↩

  35. 35.

    Fatou Bensouda, ICC Prosecutor, Statement Respecting an Investigation of the Situation in Palestine (Mar. 3, 2021), available online. ↩

  36. 36.

    Karim A.A. Khan, ICC Prosecutor, Statement from Cairo on the Situation in the State of Palestine and Israel (Oct. 30, 2023), available online. ↩

  37. 37.

    Karim A.A. Khan, ICC Prosecutor, Statement on the Situation in the State of Palestine: Receipt of a Referral from Five States Parties (Nov. 17, 2023), available online. ↩

  38. 38.

    Id. ↩

  39. 39.

    Governments of Chile and Mexico, Letter to the ICC Prosecutor Referring the Situation in Palestine (Jan. 18, 2024), available online. ↩

  40. 40.

    State of Palestine, supra note 24. ↩

  41. 41.

    Clancy & Falk, supra note 26. ↩

  42. 42.

    United Nations Human Rights Council, U.N. Doc. A/HRC/12/18, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (Sep. 25, 2009), available online; Clancy & Falk, supra note 26. ↩

  43. 43.

    United Nations Human Rights Council, U.N. Doc. A/HRC/29/CRP.4, Report of the detailed findings of the independent commission of inquiry on human rights situation in Palestine and other occupied Arab territories (Jun. 24, 2015), available online; Clancy & Falk, supra note 26. ↩

  44. 44.

    United Nations Human Rights Council, U.N. Doc. A/HRC/40/74, Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory (Feb. 25, 2019), available online; Clancy & Falk, supra note 26. ↩

  45. 45.

    Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), 2004 I.C.J. Rep. 136 (Jul. 9, 2004), available online; Clancy & Falk, supra note 26. ↩

  46. 46.

    International Court of Justice and the Question of Palestine, U.N., available online (last visited Dec. 11, 2024). ↩

  47. 47.

    Clancy & Falk, supra note 26. ↩

  48. 48.

    Id. ↩

  49. 49.

    Harry Davies, Revealed: Israeli Spy Chief “Threatened” ICC Prosecutor Over War Crimes Inquiry, The Guardian, May 28, 2024, available online. ↩

  50. 50.

    Id. ↩

  51. 51.

    Id. ↩

  52. 52.

    Id. ↩

  53. 53.

    Id. ↩

  54. 54.

    Id. ↩

  55. 55.

    International Criminal Court Condemns U.S. Sanctions on Officials, Al Jazeera, Sep. 3, 2020, available online. ↩

  56. 56.

    Israel to Tell ICC It Does Not Recognise Court’s Authority, Al Jazeera, Apr. 8, 2021, available online. ↩

  57. 57.

    Israel’s Clashes With the ICC Over the Past Decade—a Timeline of Events, Al Jazeera, May 30, 2024, available online. ↩

  58. 58.

    Samy Magdy, Amnesty International Says Israel Is Committing Genocide in Gaza. Israel Rejects the Allegations, AP, Dec. 5, 2024, available online. ↩

  59. 59.

    Clancy & Falk, supra note 26. ↩

  60. 60.

    Human Rights Watch, Q&A: The International Criminal Court and the United States, § 7 (Sep. 2, 2020) [hereinafter Q&A], available online. ↩

  61. 61.

    U.S.: “Hague Invasion Act” Becomes Law, HRW (Aug. 3, 2002), available online. ↩

  62. 62.

    Q&A, supra note 60. ↩

  63. 63.

    Id. ↩

  64. 64.

    Illegitimate Court Counteraction Act, H.R. 8282, 118th Congress (Referred in Senate Sep. 11, 2024), available online. ↩

  65. 65.

    Kyle Stewart & Sarah Mimms, U.S. House Votes to Sanction International Court Over Warrants for Netanyahu and Other Israeli Officials, NBC News, Jun. 4, 2024, available online. ↩

  66. 66.

    Illegitimate Court Counteraction Act, supra note 64. ↩

  67. 67.

    Ed Sykes, Trump Ally Lindsey Graham Makes MORE Shocking Comments About the ICC and Israel, Canary Media, Nov. 28, 2024, available online. ↩

  68. 68.

    Graham Threatens to Sanction U.S. Allies if They Arrest Netanyahu, Gallant, Jewish News Syndicate, Nov. 24, 2024, available online. ↩

  69. 69.

    Rawan Suleiman, Palestinian Ambassador to Holland, From Impunity to Accountability: The Role of ASP Member States in Supporting the ICC’s Response to the Situation in Palestine, 23rd ASP (Dec. 6, 2024).

    (Suleiman gave a speech attended by the author). ↩

  70. 70.

    John LaForge, Netanyahu to Biden: “Well, You Dropped the Atom Bomb.”, CounterPunch (Nov. 29, 2024), available online. ↩

  71. 71.

    Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 [hereinafter Genocide Convention], available online. ↩

  72. 72.

    Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31 (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter First Geneva Convention], available online. ↩

  73. 73.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (PTC I, Dec. 15, 2011), available online. ↩

  74. 74.

    Press Release, ICC, Ukraine Situation: ICC Pre-Trial Chamber II Finds That Mongolia Failed to Cooperate in the Arrest and Surrender of Vladimir Vladimirovich Putin and Refers the Matter to the Assembly of States Parties (Oct. 24, 2024), available online. ↩

Collapse