Taking Netanyahu and Gallant to Trial? Legally, the Requests Are Legitimate

A bomb, fortunately this time only figuratively, was dropped on the Israel-Hamas conflict that has been devastating the Gaza Strip since last October. From his office in The Hague, Chief Prosecutor of the International Criminal Court, Karim Ahmad Khan, has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, along with Defense Minister – Yoav Gallant – and several Hamas leaders. It is a decision that has sparked indignant reactions from first Israel, then from the United States and other countries. There is also, however, some consensus. Beyond the political consequences, what are the legal bases on which these requests are founded, and what are the chances of them being carried out? Paola Mariani, Associate Professor of European and International Law in the Department of Legal Studies at Bocconi University, discusses the topic in this interview.

Is this a legally substantiated request and, if so, on the basis of which articles?

The arrest warrants issued by the Prosecutor of the International Criminal Court are legitimate. This can be deduced from the articles of the Statute of the Court and, in particular – from article 12, paragraphs 2a and 2b – which establish the Court’s jurisdiction for crimes committed in the territory of a Member State or by nationals of a Member State. As far as the Court is concerned, Palestine is considered to be a State which has acceded to the Statute. Thus, even if Israel has not accepted the jurisdiction of the Court, the alleged perpetrators of crimes committed in the Gaza Strip and West Bank can be prosecuted. The same applies for Hamas leaders, as Palestinians, for crimes committed outside the territory of their own State. It must not be forgotten that the International Criminal Court does not try States, but persons responsible for committing crimes.

How should the provision be implemented in practice? That is, who should "arrest" Netanyahu and the Minister (as well as Hamas leaders) and bring them to court?

States that have ratified the Statute of the International Criminal Court (123 to date) have an obligation to arrest persons with an international arrest warrant. The State in which the arrest takes place will have to extradite the accused to the Netherlands so that they can be tried by the Court in The Hague.

Is it right to put the leader and a minister of a sovereign State on the same level as those of an organization like Hamas?

It is legitimate under the Statute of the Court. Anyone with, to some extent, a formal State role who is responsible for genocide, war crimes, crimes against humanity and aggression must be held accountable. Failure to do so would result in impunity for one or the other.

Are there examples – recent or not – of similar cases, and what did they lead to?

The Court's first conviction case was in 2012. Since then, proceedings have been opened against Heads of State and military or paramilitary leaders for crimes committed in Africa, even in the case of internal conflicts. However, a trial can only be held in the presence of the defendant, and it is often difficult to execute an international arrest warrant. When the trial takes place and a prison sentence is decided, it is carried out in one of the member Countries. For example, in July 2019 Bosco Ntaganda was convicted of war crimes and crimes against humanity committed in the Democratic Republic of Congo. The court sentenced him to 30 years in prison. The sentence was upheld on appeal, and Bosco Ntaganda is now serving time in a Belgian prison.

What are the factors that led to the prosecutor's request?

The Prosecutor acts when there is sufficient evidence to request the trial of persons accused of committing crimes specified in the Statute. The alleged facts are well documented in the case of the arrest warrants against the Israeli Head of Government, Defense Minister and leaders of Hamas. Moreover, in this case the Prosecutor asked an independent panel of experts for an opinion on the propriety of his actions. The panel's report established that the arrest warrants were supported by sufficient evidence.

Why are there no such warrants in other conflicts?

The court has been accused of failing to act against the permanent members of the Security Council, and focusing strictly on crimes committed in African States. However, not too long ago there were also investigations against Russia and, recently, for crimes committed in Afghanistan during the occupation of the United States and its allies. Afghanistan has ratified the Statute and this renders the Court competent for crimes committed on its territory. In the case of Russia's aggression against Ukraine, Ukraine has asked the International Criminal Court to intervene for crimes committed by Russia on its territory, despite the fact that both countries have not ratified the Statute. A non-member Country's request to the Court determines its jurisdiction. Therefore, an international arrest warrant was issued against Putin.

translated by Rosa Palmieri