THE HAGUE, Netherlands (CN) — Dozens of advocacy organizations, international legal experts and countries have weighed in on whether the International Criminal Court has jurisdiction to investigate Israeli officials, after the United Kingdom requested permission to submit a formal argument.
The United States, Germany and Ireland were among the nine countries who submitted amici curiae to The Hague-based court, along with Palestine. A pre-trial panel set Wednesday as the deadline to turn in arguments.
Under the government of former Prime Minister Rishi Sunak, the United Kingdom asked the three-judge panel tasked with determining if warrants against Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant, as well as senior Hamas officials, should be issued. The court's senior prosecutor had requested the warrants in May.
In an unusual step, the judges agreed, opening the opportunity to other countries, organizations and experts. In the end, 24 individuals, 51 organizations and 18 countries were allowed to submit materials. Following elections in July, the U.K. dropped its request to participate.
“Nobody really thought of filing observations before the U.K. did,” international lawyer Owiso Owiso told Courthouse News. He did not work on any of the submissions to the court.
The submissions were supposed to focus on jurisdiction — specifically if the ICC has jurisdiction to prosecute Israeli officials. Israel is not a party to the Rome Statute, the treaty that created the court in 2002. However, Palestine is, and the prosecutor has said he has the authority to go after those who commit crimes on the territory of a member state.
In 2023, the court issued warrants for Russian President Vladimir Putin and one of his deputies. The Russian Federation is also not a member but Ukraine, where the supposed crimes took place, has given the court jurisdiction.
The 45 submissions currently available mostly focus on whether the 1993-95 Oslo Accords prevent the court from prosecuting Israeli officials and whether the prosecutor has ignored the principle of complementarity in his investigation.
The pair of agreements between Israel and the Palestine Liberation Organization, signed as part of a peace process, prevent Palestine from prosecuting Israeli nationals.
“The Palestinians could not have delegated to the court jurisdiction they never had,” the United States — which is also not a member of the court — wrote in its submission.
International lawyers Richard Falk and Michael Lynk, in a joint submission, argued that the Oslo Accords are immaterial to the ICC because the court’s jurisdiction doesn’t stem from national jurisdiction.
“Article 12 of the Rome Statute, governing the preconditions to the exercise of jurisdiction, makes clear that states parties do not delegate or transfer their jurisdiction to the court,” they wrote.
Other organizations said the prosecutor ignored the principle of complementarity. The International Criminal Court is intended to be a court of last resort, only prosecuting crimes where national judicial systems are unwilling or unable to do so.
Hungary told the judges that Israel has the capability to prosecute crimes in its own courts. “Israel has a robust and independent legal system that is presently actively examining, investigating and reviewing a wide range and issues and allegations,” Budapest wrote.
However, others point to what they see as widespread impunity for Israeli officials.
International law professor Neve Gordon argued that Israel has failed to prosecute its own citizens for crimes against Palestinians. “A staggering 98% of complaints regarding soldiers’ offenses against Palestinians have concluded without any indictment,” he wrote.
Palestine took issue with allowing submissions at all. The former British colony said there was no legal basis for the court to accept challenges to jurisdiction through amicus briefs. The filings “must be disregarded for a lack of standing,” Palestine said in its filings, and accused the United Kingdom and others of “politicizing” the process.
It’s unclear whether the submissions will affect applications for warrants. A panel of judges ruled in 2021 that the court has jurisdiction over the West Bank and the Gaza Strip, territories Israel occupied following the Six-Day War of 1967.
“I don’t foresee them affecting the outcome, but they’ll certainly delay a decision on arrest warrants,” Owiso said.
Had the judges not allowed the U.K. to weigh in, it’s likely the panel would have already made a decision whether to issue the warrants.
Hamas leader Ismail Haniyeh was killed in an Israeli drone strike in Iran in July. He’s been replaced by Yahya Sinwar, whom the prosecutor has also requested an arrest warrant for.
Follow @mollyquell
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