by Oui
Wed Aug 7th, 2024 at 08:58:01 AM EST
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THE ICC PALESTINIAN CHALLENGE
The International Criminal Court's indictment of two Russian leaders including Vladimir Putin increases pressure on its Prosecutor to show the same firmness in other cases. These include Palestine - and Israeli leaders in particular.
Biden slams 'outrageous' application for arrest warrants against Israeli officials
House passes International Criminal Court sanctions bill after prosecutor seeks Netanyahu warrant | CNN News - 4 June 2024 |
The ICC Prosecutor's Double Standards in the Time of an Unfolding Genocide | Opinio Juris - 3 Jan 2024 |
The Prosecutor's statements on the standard of proof he intends to apply in the context of the Palestine investigation have been ambiguous and therefore contentious. On various occasions, the Prosecutor stressed that he will not `hesitate to act pursuant to his mandate' once the evidence reaches the threshold of `realistic prospect of conviction'.
As already highlighted, the word 'realistic' 'seems -concerningly- more about pragmatism and realpolitik, rather than about the law itself.' As a flexible and subjective concept, the word `realistic' may affect the consistent application of the Rome Statute and the `uniformity and certainty in the administration of criminal justice'. For instance, one might question (inter alia) whether the threshold of `realistic prospect of conviction' was satisfied when the Prosecutor requested the arrest warrant against the Russian President Putin.
The Palestine Situation and Prosecutorial Passivity before the 29th of October 2023
At times, Prosecutor Khan has shown a welcome ability to ensure his Office reacts promptly to the alleged commission of international crimes.
On 28 February 2022, Khan announced his intention to open an investigation into the situation in Ukraine, affirming that "there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine."
However, the lack of meaningful progress in the Palestine situation has been strongly criticized. While it took the Prosecutor only one year to idenrify concrete cases in the situation in Ukraine, he has not requested any warrants of arrest or summons in relation to Palestine and Israel in the two years and half since he was sworn in on 16 June 2021, inheriting an opened investigation into the situation in Palestine from his predecessor.
A few things suggest that the Palestine situation has not been a priority for Khan before October 2023. It seems that no ICC investigator has ever visited Israel or the Palestinian territory. A further signal of the Court's paralysis in the Palestine situation is the allocation of resources (contra, see here): the Office of the Prosecutor (OTP) assigned no funds to the Palestine situation in 2022 (the budget was finalised on 16 August 2021).
Gaza in Ruins: Satellite Imagery Researchers Say Israel Has Destroyed or Damaged 56,000 Buildings
In 2023, Khan allocated the lowest budget (0.9 million euros) among all active investigations to the Palestine investigation (one fifth of the budget of 4.5 million euros to Ukraine for which the Prosecutor had called upon states to provide voluntary contributions; (almost) one fourth of the budget of 3.5 million euros to Sudan; and half of the budget of 1,9 million euros to the Philippines ).
The way in which the Prosecutor had approached the Palestine investigation appears to be in sharp contrast to the Ukraine situation. After the beginning of the Russian full-scale invasion, Khan undertook several visits to Ukraine, attended press conferences, opened the Court's biggest field office, deployed 42 investigators [welcomes strong cooperation with the PM Mark Rutte of the Netherlands], opened an online portal to collect evidence, and raised unprecedented amounts of funding from various states.
These were the same measures Palestinian human rights groups have been requesting for a while, yet to little or no avail. According to civil society organizations in Palestine, despite repeated requests for a similar commitment to accountability, the Prosecutor `never sought outside money for the ICC's Palestine investigation, never spoke about a "crime scene"..., never sought to visit Palestine'. Since June 2021, the Prosecutor had not provided any updates on the Palestine investigation.
Eurojust and the war in Ukraine
ICC warrants for Netanyahu, Gallant expected within two weeks | JNS - 17 July 2024 |
Israel had reportedly hoped a British government challenge to the ICC would block the warrants.
Israel had bargained that an unofficial agreement with Britain's previous Conservative government would derail the ICC effort, the report said.
According to that agreement, Britain would file a challenge to the court over whether it had jurisdiction in the Gaza Strip. Britain reportedly filed an amicus brief to that effect with the court on June 10.
The Kingdom of Norway submitted an amicus brief to ICC on relation to Palestine and Oslo Accords - 5 August
