Developments and Warrants in the Criminal Proceedings at the Courts in The Hague –Questions and Answers

What are the courts in The Hague?

Two separate courts sit in The Hague and are authorized to hear cases involving the violation of human rights during armed conflicts, the rules of war, and crimes against humanity.

The International Court of Justice (ICJ) began to operate in 1946 and was established under the United Nations Charter, the organization’s constitution. The ICJ’s function is to apply international law in order to resolve legal disputes referred by states, and to offer advisory opinions on legal questions submitted by UN organizations and agencies. The ICJ’s authority is limited to clarifying disputes between states; it does not hold any authority over individuals.

The International Criminal Court (ICC) began to operate in 2002. It was established under the Treaty of Rome, which has been ratified by over 120 states. The ICC is authorized to investigate and prosecute individuals, not states. It was established in order to demand personal criminal liability and to penalize individuals who commit, or who order the committing, of grave crimes – genocide, crimes against humanity, and war crimes.

Proceedings relating to Israel are currently being pursued in both courts. The following summary discusses each court separately.

The International Court of Justice (ICJ)

What are the court’s authorities?

A judicial proceeding before the ICJ begins when one state submits a suit against another. The court’s authority to hear proceedings between states is based on the principle of consent. This means that a state cannot be forced to appear before the ICJ against its will, even if it ratified the UN Charter and is a member state in the ICJ. However, a state’s refusal to appear before the court can have ramifications in the international arena (such as loss of political power, diplomatic isolation or sanctions by other states). Once a state has agreed to be a party in a proceeding, it is bound by the court’s decisions.

In the context of an armed conflict, the ICJ is empowered to issue warrants concerning the conduct of the parties to the conflict. If the state does not observe the warrants, they can be enforced by the UN Security Council, which is also empowered to impose sanctions and weapons embargoes or to intervention by means of an international military force, among other powers.

Unlike warrants, the ICJ’s advisory opinions are not binding or enforced. However, they serve as a legal determination that may serve as the basis for the decisions of international bodies and states on critical issues, such as weapons supplies or cooperation in the economic, cultural, and academic spheres. A proceeding for an advisory opinion is instigated on the request of the UN.[1] 

[1] Smadar Ben-Natan, Israel and The Hague: How Did We Get Here and Where are We Going from Here?, Sicha Mekomit, March 20, 2024

What proceedings concerning Israel are currently pending at the ICJ?

Two proceedings are currently pending at the ICJ:

1. The drafting of an advisory opinion regarding the legal consequences of Israel’s control of the Occupied Territories and of its policies, including in East Jerusalem. The proceeding was instigated following a request submitted in December 2022 by the UN General Assembly. The hearing took place in February 2024, and 49 states chose to present their position. Israel chose not to appear at the hearing, but submitted a short written position.

2. A criminal case in an inter-state dispute following a suit submitted against Israel by South Africa in late December 2023. The suit alleges that Israel is committing the crime of genocide against the Palestinians in the Gaza Strip. Israel, which ratified the Convention on the Prevention and Punishment of the Crime of Genocide in 1950, appeared before the legal proceeding.
   

Two hearings have been held so far in this proceeding, in January and May 2024. Following the January hearing, the ICJ established that it is authorized to hear the suit and to issue temporary warrants, including warrants instructing Israel to allow the adequate provision of humanitarian aid to Gaza and to act against statements constituting incitement to genocide. The court also established that Hamas must release all the captives immediately. The court rejected South Africa’s request to issue a warrant ordering the cessation of hostilities.

A further hearing was held in mid-May after South Africa complained to the ICJ that Israel was not observing the earlier warrants and that its military operation in Rafah constitutes a significant change in the circumstances of the case. South Africa again asked the court to order the cessation of hostilities and the provision and delivery of humanitarian aid on an adequate scale; it also asked that independent investigative team be permitted to enter in order to collect evidence. The ICJ is expected to reach a decision on the request within a few weeks.

The International Criminal Court (ICC)

What are the court’s authorities?

The court is authorized to prosecute individuals for war crimes and crimes against humanity – grave offenses under international law. The ICC is only authorized to pursue an investigation and prosecution if the relevant state has failed to pursue independent and exhaustive investigations meeting the requirement of criminal investigations – the principle of complementarity. In other words, the goal behind the establishment of the ICC was not to serve as a substitute for the criminal judicial system of the states, but to provide a tribunal enforcing international law in cases when states are unwilling or unable to pursue independent investigations concerning alleged serious crimes. Naturally, the mere existence of the ICC encourages states to investigate grave crimes by themselves. Experience shows that investigative actions by the United Kingdom prevented its prosecution under international law.

Since the ICC’s mandate is confined to the most serious offenses, its investigations usually concentrate on the liability of senior figures in the political and military echelons who are responsible for formulating policy and taking decisions, rather than the actions of soldiers in the lower echelons.

What is the ICC’s authority concerning Israel?

The ICC is only authorized to act against states that are members of the Treaty of Rome. A state that signed and ratified the treaty may request that the court investigate a case, and it may also be the subject of an investigation. Israel signed the Treaty of Rome at the end of 2000 but did not ratify it, due to its refusal to accept a clause stating that the settlement of an occupying population in an occupied territory constitutes a war crime. Accordingly, Israel is not a party to the treaty and cannot apply to the court.

The Palestinian Authority was admitted as a member of the Treaty of Rome in 2015, even though it is not a state. The Palestinians asked the court to investigate Israel’s actions in the Occupied Territories, and the Chief Prosecutor asked the court to determine whether it is authorized to discuss events that occurred within the territories of the Palestinian Authority.

On February 5, 2021, the ICC ruled that its jurisdiction extends to events in the West Bank, East Jerusalem, and Gaza. This gave the green light for the court’s Chief Prosecutor to instigate an investigation against Israel.

What proceeding is currently pending at the ICC concerning Israel

Since March 2021, the ICC has been undertaking an investigation against Israel and Hamas for the suspected violations of international law in 2014. Until October 7, 2023, this investigation focused on three issues:

1. The suspected use of disproportionate force against civilians during Operation Protective Edge.

2. The suspicion that the open-fire regulations against Palestinian protestors along the perimeter fence in Gaza violate international law.

3. The suspicion that the settlement enterprise constitutes a violation of international law.
   

The court also instigated an investigation against Hamas on suspicion of indiscriminate shooting at civilians.

As noted, when the state itself has undertaken exhaustive and effective investigations, the ICC is not empowered to submit indictments against involved persons. Israel could have notified the court that it had opened independent investigations in the above-mentioned matters, thereby avoiding the filing of indictments against senior figures in the government and military. It did not do so.

What changed in terms of the ICC’s investigation following the events of October 7th and the outbreak of the war in Gaza?

Following the events of October 7th and the outbreak of the war, the investigation was expanded. It now also includes suspected violations by Hamas against Israeli civilians on and after October 7th, as well as suspected violations by Israel against Palestinian civilians in Gaza during the war.

On May 20, 2024, the Chief Prosecutor of the ICC announced that he is asking the court to issue arrest warrants against Hamas leaders Yahya Sinwar, Ismail Haniyeh, and Muhammad Deif, and against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. The request will be heard during a pre-trial proceeding.

For what offenses is the Chief Prosecutor requesting warrants?

In the case of the three Hamas leaders, the Chief Prosecutor is requesting arrest warrants due to their criminal liability for crimes against humanity and war crimes committed inside Israel and in the Gaza Strip on and after October 7, 2023. The main charges are extermination as a crime against humanity, the taking of hostages, torture and acts of rape and sexual violence against hostages. The Prosecutor also declared that the Hamas leaders bear criminal liability for the killing of hundreds of Israeli civilians in the attacks they committed on October 7th and for the capture of at least 245 hostages.

Regarding the Israeli Prime Minister and Defense Minister, the Chief Prosecutor is requesting arrest warrants on the grounds that they bear criminal liability for war crimes and crimes against humanity committed by Israel in the Gaza Strip on and after October 8th. The main charges include the starvation of civilians as a means of war, the deliberate and premeditated targeting of attacks against a civilian population, killings committed contrary to the rules of war, deaths due to hunger, and the crime of persecution (an offense relating to the persecution of a collective, as distinct from individuals).

The Prosecutor argues that the evidence collected suggests that Israel deliberately and systematically deprived the civilian population in all parts of the Gaza Strip of vital means for survival. It did so by imposing a total siege on Gaza, including the complete closure of the three border crossings - Rafah, Kerem Shalom, and Erez - for protracted periods of time. This was followed by the arbitrary restriction of the provision of vital supplies, including food and medicines, through the border crossings following their reopening. The Prosecutor noted  that the siege also included the protracted disconnection of water pipes from Israel to Gaza – the primary source of clean water for the residents of Gaza, as well as the disconnection and disruption of the electricity supply. Attacks were also made against civilians, including civilians standing in line for food, the disruption of the provision of aid by humanitarian agencies, and attacks on aid workers, including killings, forcing many agencies to suspend or restrict their operations in Gaza.

What evidence does the ICC employ?

The proceedings at the ICC are criminal proceedings and their objective, as in any criminal proceeding, is to discern the truth. To this end, the court collects the maximum possible quantity of useful evidence and findings. The Chief Prosecutor and his team visited Israel on the invitation of the families of the hostages to investigate the events of October 7th, and the charges against the Hamas leaders are based in part on testimonies collected from survivors and from his visit to the communities affected by the attack. The Prosecutor also visited Egypt and Rafah (Israel did not permit him or his team to enter the Gaza trip), meeting with Palestinians who fled from Gaza and with representatives of aid agencies and international organizations active in the area. Other findings are based on photographic material, various evidence transferred from the field, the official reports of states and UN agencies, as well as reports and investigations published by medial outlets and human rights organizations dedicated to documenting and reporting on human rights violations.

Naturally, the ICC can also accept materials from the defendants. Since Israel rejects the jurisdiction of the ICC, it is not cooperating with the proceedings and has not submitted its own evidence or data.

Could the issuing of arrest warrants against Israeli leaders have been avoided?

The best way to avoid the instigation of an investigation by the ICC is to adhere strictly to the rules of war: to avoid, as far as possible, harm to uninvolved civilians and to ensure the regular provision of adequate humanitarian aid. If Israelis from the government and the security forces are suspected of violating international law, Israel should ensure the comprehensive, thorough, and impartial investigation of the allegations.

The only investigation mechanism that exists in Israel is within the military system. Even after the reforms made to the military investigative system in 2016, human rights organizations and the international community still raise criticisms concerning the failure of the military to show adequate accountability.

Israel could decide to establish an official and independent commission of inquiry holding broad powers to investigate decision-makers and military figures. Such investigations could prevent an investigation by the ICC and the issuing of arrest warrants against senior Israeli figures, due to the principle of complementarity, as explained above.

Since the outbreak of the war, the Prosecutor has emphasized several times the importance of the principle of complementarity. Accordingly, if evidence is presented showing that Israel is conducting independent and objective judicial proceedings, including thorough investigations concerning Israel’s policies and actions in the Gaza Strip, the ICC will examine the actions taken against persons liable for shaping and executing these policies and actions. To date, Israel has chosen not to do so.

What about Israel’s right to self-defense?

Like any other state, Israe has the right to act to defend its population. However, this right cannot exempt it from liability for observing international law. According to the Chief Prosecutor’s statement, whatever Israel’s military objectives, there is grave suspicion that the policies and means it chose to adopt in order to secure its objectives in the Gaza Strip included a policy of starvation, deliberate killing, the causing of extreme suffering, and severe violation of the right to bodily propriety of the civilian population in Gaza.

Accordingly, these acts constitute a grave violation of the provisions of international law.

The Prosecutor has declared several times since the war began that Israel must urgently permit expanded and immediate access to humanitarian aid. He also emphasized in his earlier statements that starvation as a means of war, and the denial of humanitarian aid, constitute violations in accordance with the Treaty of Rome. He added that he would not hesitate to act if no steps were taken to remedy the violations.

What is likely to happen now?

As stated above, the Chief Prosecutor of the ICC has requested the issuing of arrest warrants as a pre-trial proceeding at the court. The request will be heard by three judges, who will determine whether there are reasonable grounds to believe that the person against whom the warrant is requested committed a crime that falls under the jurisdiction of the court. They will decide whether to reject the request or to approve it and issue official arrest warrants.

In previous cases, the pre-trial proceedings lasted several months before a decision was taken concerning the issuing of a warrant. To date, only one public request for a warrant has been denied (the ICC later issued an amended warrant, after a further request was submitted with amended charges).

The ICC does not have its own police force. Accordingly, it relies either on the suspect voluntarily handing themselves in to the court, or on the 124 member states enforcing its arrest warrants. To date, cooperation of states in extraditing suspects in their territory has been challenging (17 individuals against whom arrest warrants were issued are currently at large). The ICC does not hold trials in absentia, and accordingly the case cannot proceed until the suspect is in its custody.[1]  

[1] For further discussion of the stages of the judicial proceeding and the court’s conduct, see: Timeline of Int'l Criminal Court Arrest Warrant Applications for Gaza War: What Comes Net and How We Got Here

What does ACRI think?

Since the war began in the Gaza Strip, human rights violations have occurred – and continue to occur – on an unprecedented scale and volume. Israel must examine its policy and actions that led to extensive killings among the civilian population and to grave damage to the health system, emergency services, civilian infrastructure, buildings, and a humanitarian catastrophe.

Over the years, ACRI has sent numerous legal documents to the government, the military, the Military Advocate General’s office, and the Ministry of Justice, and it has also petitioned the Supreme Court – all in an attempt to prevent violations of international humanitarian law. ACRI has demanded that the authorities in Israel undertake appropriate investigations in relevant cases. Recently, we joined a petition submitted by Gisha demanding the provision and supply of humanitarian aid to the Gaza Strip on an adequate scale.

Our position is consistent: the State of Israel bears a legal and moral responsibility to avoid violations of the rules of war and to refrain from committing crimes against humanity. It must also undertake in-depth and objective investigations whenever suspicion arises of such violations. It must do this regardless of any intervention by the courts in The Hague.

Israel bears a duty to establish an independent investigative mechanism empowered to investigate policies, guidelines, and orders given to soldiers in general, and particularly during their actions in the Gaza Strip and West Bank. The changes Israel has made in recent years to its investigative policy, in part following the report of the Turkel Commission and the threat of intervention by the ICC, are insufficient. Moreover, the investigations instigated by Israel relate to private instances, against soldiers who do not hold senior positions, and in most cases, they end without any consequences.

Israel consistently continues to refuse to investigate events in the Occupied Territories (including the Gaza Strip) on the level of policy and decision-making. It also maintains a policy intended to promote the illegal settlement enterprise and the annexation of the West Bank, in violation of international law. This conduct permits the ongoing and profound violation of basic human rights in the Gaza Strip, the West Bank, and East Jerusalem, including the violation of Israel’s legal and moral obligations.

As long as Israel is unwilling to undertake the thorough and comprehensive investigation of violations of international law, the body empowered to investigate and prosecute those responsible is the International Criminal Court.