Israel, Hamas At The ICC: Answering The Genocide Question

By limiting itself to crimes against humanity and war crimes at this stage, the ICC has adopted the most suitable approach in the given circumstances, allowing itself to pursue its goal objectively without becoming political and controversial

Israel, Hamas At The ICC: Answering The Genocide Question

On May 20, 2024, Karim Asad Ahmad Khan KC, the Chief Prosecutor of the International Criminal Court (ICC), requested the global court to issue arrest warrants against the Israeli and Hamas leadership.

The request was made based on the evidence collected and having reasonable grounds that Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Israeli Defence Minister, bear criminal responsibility for 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; and also against Yahya Sinwar, head of the Islamic Resistance Movement' Hamas' in the Gaza Strip; 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 bearing criminal responsibility for the 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.

Though a landmark step, Article 16 of the Rome Statute of the International Criminal Court allows the UN Security Council (UNSC) to interfere and defer the ongoing investigation and prosecution for a 12 month (or one year) period, by requesting the ICC, through a resolution adopted under Chapter VII of the United Nation's Charter, which may be renewed, and thereby postponing the investigation or prosecution indefinitely.

The US, a permanent member of the UNSC, has the power to veto a resolution, but it is not a party to the Rome Statute. In the past, the US has not created any hurdles when the UNSC referred situations in Darfur (Sudan) and Libya to the ICC under Article 13 (b) of the Rome Statute. But, the administration of US President Donald Trump had imposed sanctions on ICC's senior officials, including the then-Chief Prosecutor Fatou Bensouda. At the same time, the US Secretary of State Mike Pompeo accused the court of 'illegitimate attempts' to subject Americans to its jurisdiction and for being a 'thoroughly broken' and 'corrupted institution,' for initiating investigations into alleged war crimes committed by the US and its allies in Afghanistan, which was later dropped by the present Chief Prosecutor who defended and justified his decision by saying that the worst crimes were committed by the Taliban and ISIL (ISIS).

The administration of US President Joe Biden later lifted the sanctions on the ICC. But now, some US lawmakers are slamming the ICC Chief Prosecutor's request seeking arrest warrants for Israeli leaders, calling it illegitimate and lacking legal basis, and that if carried out will result in severe sanctions against the ICC.

Like the US, Israel is also not a party to the Rome Statute, but the ICC has declared that it has jurisdiction over Gaza, East Jerusalem and the West Bank after Palestinian leaders formally agreed to be bound by the ICC's founding principles in 2015. On January 2, 2015, Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General, which entered into force for Palestine on April 1, 2015. This move was opposed by the UK, Israel, the US, France, Canada and several other states. Presently, Palestine has an observer status at the UN, and it is now being backed for full membership at the UN.

Israel had also slammed the International Court of Justice (ICJ) for the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) for ordering to prevent genocidal acts in the ongoing conflict in Gaza, but applauded it for not ordering the ceasefire. It must be kept in mind that this case should not be confused with case of Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem and another case of Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), which are also presently pending before the ICJ. 

Previously, in the case of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ had held that Palestinian territories which, before the armed conflict of 1967, lay to the east of the 1949 Armistice demarcation line (or Green Line), were occupied by Israel during that conflict.

In the South Africa v. Israel case, Israel refuted South Africa's claims, terming it an 'obscene exploitation' of the 'most sacred' Convention on the Prevention and Punishment of the Crime of Genocide (or Genocide Convention).

But it is being asked why the ICC is not prosecuting Israel for allegedly committing genocide, as the request for the warrants to the ICC includes charges of extermination, the starvation of civilians as a method of warfare, which can constitute the basis for a case of genocide, even though Article 6 of the Rome Statute clearly defines genocide. 

The answer in this scenario is a bit complicated. Even though genocide is regarded as an international crime under International Criminal Law, prosecuting it can pose several challenges. The International Criminal Tribunal for the former Yugoslavia (ICTY) prosecuted the ethnic cleansing of the Bosnian Muslims, but the Serbs blame the international tribunal for being biased against them. At the same time, Bosnian Muslims are also not satisfied with many of its verdicts and controversial acquittals, raising questions about its unbiasedness and effectiveness. Similarly, the Tutsi and Hutu people are not satisfied with the International Criminal Tribunal for Rwanda (ICTR) for prosecuting genocide, even leading to a conflict between Rwanda and the Democratic Republic of Congo, which engulfed the entire region.

So, the reasons for the ICC not to consider genocide at this stage may be because a similar matter is also pending before and being heard by the ICJ, which can lead to conflicting views. Another reason for avoiding an investigation into the crime of genocide can be to protect the investigation itself from becoming controversial at this stage. However, it does not mean that the ongoing investigation cannot incorporate the crime of genocide in the future. It needs to be kept in mind that when Nazi German officials were prosecuted for the Holocaust under Article 6 of the Charter of the International Military Tribunal, which primarily dealt with the crimes against humanity, proved sufficient in this regard. Genocide would become a crime afterwards when the term was coined by Raphael Lemkin, who was a Polish lawyer of Jewish descent, and when the Genocide Convention was adopted by the international community. 

By limiting itself to crimes against humanity and war crimes at this stage, the ICC has adopted the most suitable approach in the given circumstances, allowing itself to pursue its goal objectively without becoming political and controversial.  

This is evident as already residents of the Gaza Strip are criticising the ICC Chief Prosecutor's decision to seek the arrest of Hamas leaders, saying that it falsely equates them with the Israeli leaders waging war in the Palestinian enclave since October. In 2015, Hamas had welcomed the ICC's decision to launch an inquiry into the war crimes in the Palestinian territories, which can be regarded as accepting ICC's jurisdiction to prosecute any possible violations either committed by Israel or itself, including targeting civilians. Even during the 2007 conflict in Gaza between Hamas and Fatah Hamas killed many Palestinian supporters of Fatah without due process, which should be condemned because the killing of civilians cannot be justified whether it is committed by an armed resistance group or a terrorist organisation.

While this is a historic moment in the development of International Criminal Law and in the history of Palestine, the challenges are immense. The ICC will face opposition from both sides, be sanctioned by powerful countries like the US, and even be blamed by the global south for being a neo-colonial institution. From a legal standpoint, this is still a case that needs to learn to walk before it can run.

The writer is Advocate High Court of Sindh.