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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?

What proceeding is currently pending at the ICC concerning Israel

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

For what offenses is the Chief Prosecutor requesting warrants?

What evidence does the ICC employ?

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

What about Israel’s right to self-defense?

What is likely to happen now?

What does ACRI think?


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