ICJP submits ‘Amicus Curiae’ to ICC: No Legal Obstacle to Arrest Warrants against Israeli Prime Minister Netanyahu
London, 8th August 2024 – The International Centre of Justice for Palestinians (ICJP) and the Centre for Human Rights Law (CHRL) at SOAS University of London have submitted an amicus curiae (‘friend of the court’) brief to the International Criminal Court (ICC) in the Hague, after the Pre-Trial Chamber granted ICJP-CHRL leave to submit the observations.
The ICJP-CHRL submission asserts that there are no unsettled jurisdictional obstacles which should prevent the ICC from issuing arrest warrants for which the Prosecutor has applied, including the warrants against Israeli nationals for war crimes and crimes against humanity perpetrated against Palestinians. Currently, the ICC Prosecutor has applied for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant.
In particular, the amicus curiae states that “jurisdiction in the ‘Situation in the State of Palestine’ is settled and clear, and that the matter of jurisdiction of Israeli nationals constitutes a non-issue and is not a barrier to the full exercise of the Court’s jurisdiction”. This passage urges the Court to swiftly consider the matter and grant the application of arrest warrants for Israeli Prime Minister Netanyahu and Defence Minister Gallant.
The brief also describes how the Court has previously, and correctly, noted that its jurisdiction can extend to cover Israeli nationals, namely in the Registered Vessels Situation, despite Israel’s non-membership of the ICC. Furthermore, the Court has found fit, in relation to crimes committed in Crimea and Eastern Ukraine, to exercise jurisdiction over nationals of nationals of an ICC non-member State (Russia) and for charges committed in disputed areas and areas considered occupied during ongoing conflicts.
ICJP-CHRL also responds to issues raised regarding the provisions of the Oslo Accords. Noting legitimate questions about the continued applicability of the Accords, ICJP-CHRL raises whether it would be appropriate to rely on such an agreement to interpret the ICC’s jurisdiction. Nevertheless, ICJP-CHRL states that the language of Oslo II can’t strip Palestinians of prescriptive jurisdiction, including their ability to vest the ICC with jurisdiction over crimes committed in Palestine, and could not be interpreted for the deprivation of peremptory norms. A peremptory norm is a principle so fundamental to international law that it is accepted as a ‘norm’ by an international community of states – such as the right to self-determination.
Under the principle of ‘complementarity’, the ICC may exercise jurisdiction when a national legal system fails to do so, because of unwillingness or inability. ICJP-CHRL argue that complementarity can be determined prior to the end of the conflict, and that waiting until the end of the conflict to determine complementarity would “extinguish the Court’s deterrent effect and would encourage those subject to an arrest warrant application to extend and prolong a conflict.”
Since, the ICC’s Prosecutor Karim Khan KC announced his application for arrest warrants against Israeli government ministers Netanyahu and Gallant, sovereign states, organisations and individuals have subsequently sought to weigh in and submit amicus curiae briefs, including Germany, Ireland, USA, Argentina, Chile, Mexico, Czech Republic, Columbia, Spain, Brazil, South Africa, Bangladesh, Bolivia, Comoros, Dijbouti and the DR Congo. Some of these submissions challenge Khan’s applications for warrants, whilst others support the applications.
The United Kingdom Foreign Office Legal Adviser Sally Langrish also initially indicated her intention to submit written observations challenging the Court’s jurisdiction, before these objections were eventually withdrawn in July, following a series of reported government U-turns on the matter.
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NOTES TO EDITORS
- The International Centre of Justice for Palestinians is an independent organisation of lawyers, politicians and academics who support the rights of Palestinians and aim to protect their rights through the law.
- International Centre of Justice (ICJP) and SOAS Centre for Human Rights Law (CHRL) submission available here.
- International Criminal Court, 20th May 2024, ‘Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine’
- ICJP are happy to provide more information and comments, or to arrange an interview with a spokesperson, please contact the ICJP news desk at [email protected].