I draw extensively, here, on a discussion between Dan Senor and British barrister Natasha Hausdorff, an expert on international law, foreign affairs, and national security policy, on Senor’s podcast series, Call Me Back, with a few clarificatory comments of my own.
It is worth noting the quality of his guests, particularly Israeli journalists and commentators whose historical and political knowledge, as well as their access to military information, is comprehensive.
As background
In his introduction, Senor referred to an article in 2012 in the New York Times written by Mahmoud Abbas, the leader of the Palestinian Authority. Abbas issued his “Declaration of lawfare”, calling
for the internationalisation of the conflict as a legal, not just a political
matter. Such lawfare is intended to be an abuse of legal systems and processes generally, and of international legal institutions particularly in regard to Israel.
In 1982, Abbas was granted a doctorate for his thesis The Relationship Between Zionists and Nazis, 1933-1945 by the Institute of Oriental Studies, a commission of the Soviet Academy of Sciences.
The warrants of arrest
On Thursday 21 November 2024, the International Criminal Court (ICC) issued warrants of arrest for Israeli Prime Minister Benjamin Netanyahu, former Minister of Defence Yoav Gallant, and Hamas master military strategist Mohammed Deif. Deif was killed by the Israelis in Gaza in July, but the ICC premised his warrant on the belief that his death has not been confirmed.
Netanyahu and Gallant’s warrants accuse them of attempting to orchestrate starvation as a method of warfare.
US president Joe Biden has called the warrants “outrageous” and said that the US government rejects the ICC decision. Republican leaders of Congress − the Republicans will have the majority in Congress when Donald Trump is sworn in on 20 January − directed very harsh statements at the ICC, implying that there will be repercussions for the ICC as an institution, and for several European countries which have said that Netanyahu and Gallant would be arrested if they landed in their countries.
Hausdorff says that the application by Prosecutor Karim Khan to the ICC’s pre-trial chamber was summarised for a press conference which he gave on 20 May. The very public nature of the application, and its being accepted by the court, is very unusual: this type of warrant request is usually made in secret so that the subjects are not aware that they are subject to a warrant of arrest.
Khan also appeared on Amanpour on CNN. His emphasis was principally on the allegation of intentional starvation, which included false allegations that Israel had closed the crossings into Gaza and had deliberately restricted aid into the Gaza Strip. The warrants also allege the targeting of civilians throughout the war against Hamas.
The organisation which Hausdorff represents, UK Lawyers for Israel, responded to Khan’s press summary line by line, made a submission to the ICC, and wrote a further letter to the prosecutor to establish that every phrase of every sentence was false. An example: the prosecutor relied on a report that suggested that famine might come to parts of the Gaza strip.
Khan’s report of intentional starvation was reviewed by the United Nations Famine Review Committee report which indicated that Khan’s allegations had been based on insufficient or incomplete information, and drew implausible conclusions.
Rather than seeking to review his position, Khan told the court to ignore any and all submissions made to it that did not emanate from him on the question of accuracy.
The overriding impression one receives of the process and the press release that the ICC issued on Thursday 21 November is that the ICC made its determination on the basis of false information.
History and role of the ICC
The ICC was established by the Rome Statute in the late 1990s and started functioning in 2002. It has no formal relationship with the United Nations (UN), save for the provision that the UN Security Council can make referrals to the court.
Ironically, both Israel and the US were considerably involved in establishing the notion of the formation of an international criminal court after World War II. The creation of international humanitarian and human rights law, and the notion of having international bodies to monitor them, was a consequence of the Nuremberg Trials.
A permanent body would be created to bring the worst perpetrators of crimes against humanity and war crimes to justice. The ICC acts against individuals, not states; the latter are the purview of the International Court of Justice.
While drafting the Rome Statute, a particular political agenda started to creep in which meant that both the US and Israel, which initially signed the Rome Statute, neither joined the court nor ratified the international treaty to become members of the ICC.
One of the key reasons for their withdrawal was the inclusion in “Article 8 War Crimes” of a provision of Article 49: Deportations, transfers, evacuations of the Fourth Geneva Convention. Hausdorff explained that Article 49 of the Convention is often used to claim that the presence of Jews in the West Bank/Judea and Samaria is against international law, and that Israeli settlements were illegal. Contrary to the views of Israel’s detractors, the allegation of illegal occupation of the West Bank is not uncontested, it is disputed. Those who deny that the occupation of these territories is illegal refer to them as “the disputed territories” not “the occupied territories”.
Article 49 is a provision against state transfer of individuals into an occupied territory, and the Rome Statute drafters introduced key words which directly or indirectly drafted this crime into Statute. The US and Israel saw that the drafters were trying to shoehorn the situation in the disputed territories into this definition of an alleged crime. Thus, it was a clear indication that Israel was going to be a political target of the ICC.
In Hausdorff’s view, the current frenzied criticism of Israel and so much of the misreporting of the last 13 months is because the court is seeking to rehabilitate itself from accusations of racism and bullying of staff by going after Israel.
In addition, in October allegations of sexual misconduct perpetrated by Khan became public, which may have contributed to the very public strategy of Khan regarding the warrants.
Absence of jurisdiction & right of delegation
At every juncture the ICC has refused to properly engage with the absence of jurisdiction: whether a body has jurisdiction is what distinguishes a judicial body from a political body.
The ICC simply does not have jurisdiction because Israel is not a party to it. The only other way that the court gets ‘territorial jurisdiction’ to try individuals for crimes committed on a particular territory is if the entity, the state with jurisdiction over that territory, delegates it to the court or accepts the Court’s ad hoc jurisdiction over it.
What the court has done is decided that ‘Palestine’ is sufficiently a state to be able to join the court and delegate that jurisdiction. The problem is that Palestine isn’t a state; it is merely the Palestinian Authority (PA) that has purported to join the Rome Statute. The criteria for statehood are very clear in international law.
The Montevideo Convention on the Rights and Duties of States, a treaty signed in 1933, contains the criteria for the existence of a state, including a permanent population, a defined territory, and a government with the capacity to enter into international relations. The PA simply does not fulfil those criteria. When the United Nations offered a two-state solution to the conflict in 1948, Israel accepted it, but the Arab countries did not. Israel declared independence and the United Nations recognised Israel as a country.
The Oslo Accords, a pair of international agreements between Israel and the PA, created areas A, B and C in the West Bank. Area A was designated by Israel as an area where the PA would have both civil authority and security control. Area B was shared, in that the PA has civil control, while Israel maintains security control. Control over Area C is retained by Israel.
These distinctions are important because the Accords never created a Palestinian territory. There was nothing that granted the PA the right to advance through to statehood, as it didn’t meet the necessary criteria to become a state. Final status negotiations, which were to begin by May 1996, never occurred.
(In 1995 Prime Minister Yitzhak Rabin, a negotiator at Oslo, was assassinated by a right-wing Jew. The murder was followed by a series of attacks by Hamas. This undermined the governing Labour Party, and the next election in 1996 saw the election of Likud and Benjamin Netanyahu in 1996. Likud was opposed to the establishment of a Palestinian state. In 1998 US President Bill Clinton hosted Netanyahu and Yasser Arafat at the Wye River Plantation, where they negotiated an agreement calling for further Israeli withdrawals from the West Bank. Infighting over the implementation of the Wye Memorandum, however, brought down Netanyahu’s government in January 1999. Labour returned to government with Ehud Barak as prime minister. Clinton convened a summit at Camp David in July 2000, where he, Barak, and Arafat attempted to reach a final agreement on the West Bank and the Gaza Strip. The negotiations failed and Clinton has always blamed Arafat for the failure. The Second Intifada erupted on 28 September 2000 and ended 8 February 2005.)
The Accords also prevented the PA from having, exercising or seeking to delegate any criminal jurisdiction over Israelis. Thus, the PA has no authority to delegate to the ICC something that it does not have.
Complementarity
The ICC has also flouted its own rule of ‘complementarity’. The Rome Statute requires the ICC to act in a ‘complementary’ fashion to a state’s jurisdiction. This means that the ICC may not replace a state’s sovereign jurisdiction where a state is willing and able to investigate and try any credible allegations itself.
A state should be afforded the opportunity to exercise its own jurisdiction. Ultimately the jurisdiction rests with the local state. Israel is in the middle of a war, and it is not appropriate at this time for the judicial authorities in Israel to tackle the allegations raised.
The day that Khan announced his arrest warrant application on 20 May, he was scheduled to meet Israeli officials to facilitate a dialogue about his concerns that would form the basis of the warrants. He failed to meet with the Israelis first or at all.
Israel’s judicial system is known for its robustness and the efficiency with which the rule of law is upheld. It is utterly inexplicable that the ICC would proceed in the circumstances without any discussion on the matter with the relevant state authorities.
It’s important to note that there is a chain of command outside of the military chain of command in that, by law, the IDF are answerable to the attorney-general (A-G). The A-G approves or rejects military strikes. The A-G has authority over officers who have a more senior rank than he has.
Israel has always taken a robust approach to investigating allegations made against soldiers and ensuring that soldiers are properly disciplined.
At every level, the question of the jurisdiction of the ICC has been ignored. This lack of jurisdiction is a key issue that Netanyahu and Gallant would advance.
Senor raised the breaches of international humanitarian law by other countries, such as President Bashar al-Assad’s prosecution of the civil war in which about 600,000 Syrians died. Al-Assad used chemical weapons and destroyed whole Syrian towns and villages, largely Sunni Muslim areas. According to the UN High Commission for Refugees, 14 million Syrians were displaced by the war and 7.2 million remain displaced. Over 5 million became refugees. Seventy percent remain in need of humanitarian assistance and 90% live below the poverty line. Hausdorff explained that Syria is not a party to the ICC, so the ICC has no jurisdiction over it.
(Other countries that have not recognised the ICC are: Azerbaijan, Belarus, Bhutan, Brunei, China, Cuba, Equatorial Guinea, Ethiopia, India, Indonesia, Iraq, Kazakhstan, Laos, Lebanon, Libya, Malaysia, Mauritania, Micronesia, Myanmar, Nepal, Nicaragua, Niue, North Korea, Pakistan, Palau, Papua New Guinea, Qatar, Rwanda, Saudi Arabia, Singapore, Somalia, South Sudan, Sri Lanka, Swaziland, Togo, Tonga, Turkey, Turkmenistan, Tuvalu, Vatican City, and Vietnam.)
International law on determining the borders of states
Settled international law provides that the borders of states come into existence through the application of customary international law called uti possidetis iuris.
Uti possidetis iuris provides that new sovereign states should keep the internal borders of their previously dependent area at the time of independence. The principle’s goal is to prevent territorial disputes by establishing the territorial heritage of new states and turning existing lines into internationally-recognised borders.
Before the creation of Israel on 14 May 1948, the administrative lines of the British mandate included East Jerusalem, the West Bank and Gaza.
During the 1948 war, Jordan occupied (and then annexed) East Jerusalem and the West Bank, and Egypt occupied Gaza from Israel. This situation applied until the 1967 war when Israel recovered that territory.
In the West Bank the administration by the PA exists entirely as a consequence of the Oslo Accords. There is no change to the underlying status of the territory from 1948 onwards, and every single international agreement has been clear that a change to borders will be a matter of final status agreements that determine the borders of those States.
So the ICC, in giving state recognition to the PA, ignored applicable international law.
Since the author began to write this article, the Israeli government has announced that Netanyahu and Gallant will appeal the issuing of the warrants to the ICC.
[Photo: Screenshot/I24 – Netanyahu & Gallant]
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