Over the past few weeks there has been rife media speculation on the possibility of an International Criminal Court’s (ICC) issuance of an arrest warrant against Prime Minister Natenyehau and his high-ranking officials for alleged crimes committed in the context of the ongoing war between Israel and Hamas. Unsurprisingly, United States of America (US) Senators sympathetic to Netanyahu have been quick to react by firing warning shots at the prosecutor and the ICC threatening dire consequences if any of Israeli officials are indicted by the ICC. This is reminiscent of US actions against previous Prosecutor, Fatou Bensouda and Phakiso Mochochoko who were slapped with same threatened sanctions. It is worth noting that no prior warning was given to Fatou and Phakiso as is the case with the current prosecutor and his administration – another clear example of US double standards.
The purported letter from some US Senators in part reads:
‘The United States will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward with measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the US. You have been warned.’
American Support to ICC: A MISCONCEPTION
The ICC is a permanent international judicial institution established to investigate and prosecute serious crimes of concern to the international community: genocide, crimes against humanity, war crimes and the crime of aggression. Its purpose is to hold individuals criminally accountable and thus end impunity for crimes that shock the conscience of humanity. Unlike the International Court of Justice (ICJ) which is part of the United Nations system and deals with disputes between and amongst States, the ICC is independent from the United Nations. The two bodies’ relationship is governed by the UN/ICC Relationship Agreement which prescribes how the two institutions should cooperate and coordinate with each other in the discharge of their respective different mandates: of maintenance of peace and security by the UN and investigation/ prosecution of crimes by ICC. The ICC enjoys worldwide support with 124 countries signing and ratifying its Rome Statute, thus agreeing to be bound by its provisions.
The ICC establishment in 1998 was hailed by then UN Secretary General Kofi Annan as ‘a giant step forward towards universal human rights and the rule of law.’ It is currently investigating crimes in Africa, Asia, Europe and Latin America demonstrating its universal reach wherever crimes that fall within its jurisdiction are alleged to have been committed.
While the Clinton Administration actively participated and supported the creation of the ICC from the beginning of negotiations in 1994 throughout the preparatory process leading up to Rome in 1998, US/ICC relations have been flippant and tenuous at best. Concerns about the risks the ICC would pose to US soldiers and policymakers including on its allies have been at the heart of US objections to ICC jurisdiction.
These concerns culminated with Bush Administration’s rescission of Clinton’s signature to the Rome Statute and the subsequent Bush Administration adoption of the American Servicemembers Protection Act in 2002 (ASPA). The essence of ASPA is to safeguard protections to which all Americans are entitled under the American Bill of Rights and ensure that members of the American Armed Forces (in their self-proclaimed role of world police) are free from risk of investigation and prosecution by ICC. The possibilities that US peacekeepers, senior US elected officials of the federal government including the president himself could be indicted by the ICC remains something the US cannot fathom. ASPA was shoved down the throats of many countries including Lesotho under the usual threat of cutting essential financial aid forcing these countries to undertake not to arrest and transfer US Citizens to ICC for any of the crimes that fall under ICC jurisdiction.
ASPA contains several provisions that circumscribe US ability to cooperate with ICC. It has been difficult even for ICC friendly US Administrations to assist ICC without falling foul of ASPA.
Amongst others, notable ASPA provisions are the following:
- Federal, state, and local governments and courts cannot provide support to the ICC,
- No funds appropriated by any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any US citizen or permanent resident by the ICC,
- The president must establish procedures to ensure that classified national security information and law enforcement information is not transferred to the ICC. These procedures should also prevent information provided to a third country from later being transferred to the ICC.
Time and space do not allow us to fully unpack the meaning and effect of these provisions on ICC operations. Experience is replete with incidences where ICC found itself frustrated by these provisions even when good faith efforts of officials show willingness to assist. Contrary to popular belief that ICC receives US funding, no US funds can ever be used for ICC purposes. This includes US appropriations to the UN. The ICC reimburses every cent used by the UN in the context of UN/ICC cooperation. If ICC uses UN flights, vehicles and/or if ICC staff lodge in UN premises in remote areas where ICC has no facilities that is done on full cost reimbursable basis. The threat of withholding US support to the ICC is thus a laughable joke as there is no tangible support to ICC to talk about.
Some of the provisions are a clear demonstration of US double standards where US interests are at stake. Firstly, these restrictions do not apply to actions taken by the president with respect to a particular matter involving the ICC in the exercise of his duties as commander in chief, or his general executive powers under the US Constitution. All the president must do is to notify Congress of his intent to depart from these provisions. One can just imagine what a mountain to climb it would be for the president to convince Congress to agree to any such abrogation which would, in the eyes of die-hard ICC opponents in Congress, create a dangerous precedent.
Secondly, and in the so-called Dodd Amendment of ASPA, nothing prohibits the US from rendering its assistance to international efforts to bring to justice Saddam Hussein, Slobadan Milosovic, Osama bin Laden, other members of Al Qaeda, leaders of Islamic Jihad and other foreign nationals accused of genocide, war crimes or crimes against humanity. Presumably, in all these cases, US can cooperate with ICC because US national interests would be served by such cooperation. It is in this vein that US Senators’ statement is critical of the Prosecutor’s alleged failure to indict others including Iran’s Supreme Leader Ayatolla Khamenei as well as Bashar al Assad. Thus, according to the US, ICC is only right and should be supported if it goes after US enemies but stays away from citizens of the US and its allies. Not so long ago, President Biden hailed ICC for indicting Putin and other Russian officials for alleged crimes committed in Ukraine.
IS ICC PROHIBITED FROM PROCEEDING AGAINST ISRAELIS
The purported US Senators statement seems to be in response to Netanyahu’s earlier pronouncement that ‘Israel expects the leaders of the free world to stand firm against the ICC’s outrageous assault on Israel’s inherent right of self-defence.’ The statement emphasizes this when it says ‘the ICC is attempting to punish Israel for taking legitimate actions against their Iranian backed aggressors.’ No one is questioning Israel’ right to self-defence which is one of the recognized exceptions against use of force under article 2(4) of the UN Charter and customary international law. It is wrong, however, to assert that ICC is targeting Israel and Israel is not in the dock as Netanyahu has asserted. The ICC actions in Gaza are aimed at individuals alleged to have committed crimes in the context of the war between Israel and Hamas. Investigations and eventual prosecutions will focus on individual’s accountability for their own conduct alleged to constitute crimes that fall within ICC jurisdiction. ICC investigations are based on facts, the law and evidence. Like in any other court around the world, the burden of proving alleged crimes falls on the prosecutor and never shifts. Evidence collected by the prosecutor is assessed by independent judges who are the final arbiters of whether the prosecutor has discharged his burden beyond reasonable doubt.
It is contrary to logic that the US recognizes ICC jurisdiction over Russia but not Israel, yet the same principle is applied in both situations for asserting ICC jurisdiction. The principle enshrined in the Rome Statute is that ICC can prosecute nationals of a state that has ratified the Rome Statute. It is also authorized to investigate and prosecute nationals of any state if crimes are committed in the territory of a state party irrespective of whether alleged offenders come from non-party state. In the case of Ukraine, Russian officials, citizens of a non-state party have been indicted by ICC for allegations of crimes committed in the territory of Ukraine which is a state party to the Rome Statute. Similarly, even though Israel is not party to the Rome Statute, its officials can be indicted by ICC for crimes alleged to have been committed in Palestine which is a party to the Rome Statute. Why is it right for ICC to go after Russian officials for alleged commission of crimes in Ukraine, a Rome Statute state party and yet wrong for it to go after Israeli officials for alleged commission of crimes in Palestine, a Rome Statute state party?
WHAT IMPLICATIONS DOES ICC ARREST WARRANT HAVE ON ISRAELI OFFICIALS
To protect their integrity, ICC investigations are confidential and remain so until they are made public by the prosecutor. Given the sensitivities of and international interest on the Palestine issue, rife speculation on Prosecutor’s next moves is understandable, perhaps as a form of pressure for the prosecutor to quickly move investigations in certain direction. While timing for public announcement will never be right, depending on which side of the divide one stands, the prosecutor will consider all relevant facts and take calculated steps before announcing anything regarding the outcome of his investigations. Once he is satisfied that the evidence collected by his office meets the standards required by law, he will submit such evidence for judges’ assessment, consideration, and decision. It will be up to three-member independent panel of judges to decide whether the prosecutor has discharged his burden to the required standards. Only judges can issue an arrest warrant at the request of the prosecutor and upon satisfactory submission of evidence that meets the required legal threshold.
Should arrest warrants be issued against any officials, they will be transmitted to all state’s parties to the Rome Statute who will be obliged to arrest such officials if they are in the territory of such states. In the meantime, the presumption of innocence applies. While the issuance of arrests warrants against individuals makes their travels to the 124 states parties difficult, experience has shown that ICC wanted persons still manage to survive without being arrested. Sudan President al Bashir managed to evade justice and continued his travels to some countries including South Africa under the guise of head of state immunity. Subsequent decisions by the South African courts and ICC Appeals Chamber have confirmed that such immunity does not exist in relation to cases before international tribunals. Therefore, the question is not whether ICC can issue arrest warrants against Israel officials but whether such warrants can be executed by states to ensure the officials’ appearances before ICC. Putin recently cancelled his BRICS summit attendance in South Africa for fear of arrest pursuant to ICC warrant. For Israel officials and Natenyahu, the road ahead before issuance of warrants may still be long and only time will tell.
Should such warrants be issued, South Africa will hopefully demonstrate the same courage and determination by pursuing worldwide arrests of Israil officials to face justice the same way it did pursuing the state of Israel before the ICJ.
DISCLAIMER
The views expressed in this article are personal and do not in any way represent ICC or Office of the Prosecutor views.
Phakiso Mochochoko is former Director of Jurisdiction complementarity and cooperation (JCCD) in the Office of ICC Prosecutor. He has been instrumental in establishing the ICC participating in preparatory work for its establishment from 1994 to 1998, during which period he chaired various working groups. He was Vice Chairman of the Rome Conference where he also chaired the Working Group on Cooperation (Part 9 of the Rome Statute). He was amongst the first five ICC staff sent to Hague for ICC start-up operations 2002. He has represented ICC in various fora including spearheading efforts to apprehend ICC fugitives
