If Netanyahu produces a document from the Israeli Supreme Court allowing his actions, doesn’t that make it impossible to prosecute him?
ICC works in conjunction with national courts. If a country has a functional, independent judiciary, that judiciary gets the right to address the wrong. Or not.
Israel’s judiciary is both functional and independent. Very independent. Of Netanyahu in particular.
And the Israeli judiciary seems to be going along with this.
> The ICC is intended to complement, not to replace, national criminal systems; it prosecutes cases only when States do not are unwilling or unable to do so genuinely.
> If Netanyahu produces a document from the Israeli Supreme Court allowing his actions, doesn’t that make it impossible to prosecute him?
No, it does not.
> ICC works in conjunction with national courts
Not in the way you are suggesting.
> If a country has a functional, independent judiciary, that judiciary gets the right to address the wrong
No, the ICC will rule a case inadmissible if a state has investigated and/or prosecuted that specific case (not just if it has some general level of legal functionality), unless the ICC also fines that the investigation or prosecution was not genuine (e.g., was pretextual for the purpose of, say, giving the accused an exonerating document to wave around to protect against ICC prosecution.)
My limited understanding is the location/country of the proposed violation or the violators need to be a signatory. In this case, Palestine is a signatory so the actions of Israel in Palestine as well as the actions of Hamas (acting anywhere) are within the court's jurisdiction.
The "State of Palestine" (the official name in this context) is a signatory to the ICC, and is the location of the committed crimes. I guess you could technically make an argument that despite Sderot et al being an occupation under international law, because they are in the actual control of Israel which isn't a signatory then crimes committed there couldn't be prosecuted by the ICC. Given that the only party who would try to escape arrest for crimes in those areas are Hamas leadership, I doubt that's what Israel wants. Also, I doubt Hamas is willing to legally state any part of Palestine is "Israel", particularly for a relatively non-existential threat like an arrest warrant.
And to add on to JumpCrisscross, ICC warrants are only valid in countries that are currently member states of the ICC [0], though countries will gladly turn the other eye depending on mutual interests (eg. Narendra Modi's close relationship with Japan, France, Singapore, UAE, and Israel because they didn't enforce US travel sanctions on him when he was CM of Gujarat in the 2000s).
Notably, the US is NOT a signatory of the ICC (this was a whole thing in the Iraq War days).
It kind of gives the game away when you see that the US is not a signatory but had a big say in appointing the Chief Prosecutor Karim Khan in 2021 and have instituted the "Invade the Hague Act" that would allow the US to invade the Hague if they were to prosecute any American personnel
The Biden admin cooperated with the ICC, specifically quietly handing documents to the ICC that details Putin's war crimes and urging them to submit arrest warrants for Putin. Notably Russia is also not a signatory of the ICC, so there is definitely precedent for this process that even has had the backing of the US.
IMO Khan's speech today really speaks for itself. The "International Rule of Law" is nothing but a joke if we don't not apply it equally and blindly that will ultimately lead to the degradation of modern society and our species. I highly urge people to go and check out his speech on the matter and to form your own opinion.
>The "International Rule of Law" is nothing but a joke if we don't not apply it equally and blindly that will ultimately lead to the degradation of modern society and our species.
Part of the "Rule of Law" is enforcement of that law. Who could realistically enforce it against the US? How about China?
Rule of Law requires you first establish monopoly on violence via global hegemony. If you are willing to accept some kind of global state where individual nations have lost sovereignity then okay, but if not what ends up happening is you limit your own actions while your enemies (who don't care for such rules) can walk free to do whatever.
There is precedent for the ICC [1], I believe a majority of all the ICC convictions were actually charging individuals committing crimes against their own people without crossing state lines.
The fact that China gets away with its treatment of the Uyghurs (and plenty of other major powers that technically break ICC laws) is definitely an example of how much international law is a farce, though they aren't getting around the ICC by staying within their own borders.
I don't think this is relavent to the complementary principle.
If the israeli judicial system made a good faith attempt to prosecute this crime following the standards of international law, it would probably prevent this warrant even though Israel is not a party to the court.
>produces a document from the Israeli Supreme Court
This would mean that Netanyahu has been charged, tried and eventually acquitted of the same crimes. ICC investigates if the national proceedings are genuine.
To start the process, Israeli prosecutor must prosecute.
> The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.[0]
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The ICC defines:
> 1. Complementarity: The principle of complementarity governs the exercise of the Court’s jurisdiction. This distinguishes the Court in several significant ways from other known institutions, including the international criminal tribunals for the former Yugoslavia and Rwanda (the ICTY and the ICTR). The Statute recognizes that States have the first responsibility and right to prosecute international crimes. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings. The principle of complementarity is based both on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness, since States will generally have the best access to evidence and witnesses and the resources to carry out proceedings. Moreover, there are limits on the number of prosecutions the ICC, a single institution, can feasibly conduct.[1]
namely,
> The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings.
The US argues that the ICC has not adequately allowed this process to play out through the courts in Israel.
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The Jerusalem Center for Public Affairs states:
> The criteria of unwillingness or inability to carry out proceedings would involve some indication of purposely shielding the accused from criminal responsibility or a lack of intent to bring the person to justice. This may be inferred from political interference or deliberate obstruction and delay, from institutional deficiencies due to political subordination of the legal system, or procedural irregularities indicating a lack of willingness and inability to investigate or prosecute genuinely.[2]
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Imo the hermeneutics are clear, though it will be up to the lawyers from either side to make arguments in favor of/against.
"Prosecutor’s rush to seek these arrest warrants" does not seem to be true.
ICC prosecutor did not bring this case quickly without warning. He has consistently demanded that action must be taken or he will prosecute. Israel's Supreme Court has the authority to conduct judicial review of laws and government decisions and intervene in exceptional, extreme cases. Israeli prosecutors have had time to charge.
>Since last year, in Ramallah, in Cairo, in Israel and in Rafah, I have consistently emphasised that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale. I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences. I could not have been clearer.
>As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come.
But the amount of aid going into the Gaza strip has increased dramatically (up to the Rafah crossing being taken). i.e. Israel did take action on this matter.
EDIT: It's also important to note the odd timing of asking for arrest warrants for the Hamas leadership at the same time as the Israeli arrest warrants.
Clearly unlike Israel there is no chance in *$#@ that Hamas would prosecute their own leadership for violation of international humanitarian law. The Hamas violations have also occurred earlier.
I.e. Israel should be given more time for its independent legal system to evaluate whether or not there's a case and pursue it. Israel justice system has put prime ministers and presidents on trial. Hamas shouldn't be given any time.
Given this you'd think arrest warrants for Hamas leadership would come a lot sooner.
Since this isn't the case one has to wonder if the prosecutor is doing a "both sides" kind of thing, maybe afraid of backlash if they only go after one side, in which case the response of Israel to the request to increase aid (which has happened) is not relevant.
> Israel justice system has put prime ministers and presidents on trial.
> Clearly unlike Israel there is no chance in *$#@ that Hamas would prosecute their own leadership for violation of international humanitarian law.
Huh, I almost forgot there were massive protests against the current PM when he set out to cripple the ability of the said Judiciary from trying him in court. But go on.
You also forgot that the PM failed and the Judiciary is still independent and the PM is still under trial. What's your point exactly? What you're saying is evidence of a functioning democracy and the courts are still independent.
EDIT:
I can't find a concise summary but latest update:
"422 aid trucks were inspected and transferred to the Gaza Strip, yesterday, (May.19). These trucks entered from the various aid routes we developed: Ashdod port, Erez crossing, Judea and Samaria, and JLOTS (maritime route)."
EDIT2:
It's worth mentioning that since Israel took control of the Gaza side of the Rafah crossing Egypt is refusing to let aid in through that crossing.
I live about eight kilometers from Gaza, the aid trucks are on all the highways at pretty much capacity, and it's been like this for quite a while. I really don't see how much more aid could get in without building more infrastructure, and in fact there is a new port in the strip being built (maybe done already).
It should be noted in context that even bringing in aid is dangerous. The population attacks the aid drivers for two reasons (one, to get the aid, and two, they consider those drivers "traitors" and have been attacking them for long before the current conflict). And there is not insignificant risk to the Gazans as well, there was an incident a few months ago where an aid truck ran people over trying to stop it and some people were killed in a very gruesome fashion.
Yes, because those aid drivers collaborate with the Israelis. This was going on long before the current war, when they were driving products and not aid.
I think you guys are referring to two different accounts of the same incident. Hamas claims Israel gunned down Gazans (not sure how we got to hundreds, I don't think even Hamas claimed that) and Israel claims the Palestinians mobbed the trucks and got run over as the trucks were trying to get away.
The Hamas started calling this the "Flour Massacre" since it has a certain ring to it. Given where the information is coming from I suspect it's not true. Like anything else, we don't have independent information. The IDF did investigate this as well and admitted to shooting at people approaching their security vehicles (that were there to secure the aid delivery).
Part of why it's so hard to communicate about these issues is that we all inhabit a world of propaganda that we have to work hard to see through. But in this case Hamas didn't claim anything. The people that were on the ground describe a deliberate ambush by IDF soldiers: https://www.aljazeera.com/news/2024/3/1/flour-massacre-how-g...
ICC works in conjunction with national courts. If a country has a functional, independent judiciary, that judiciary gets the right to address the wrong. Or not.
Israel’s judiciary is both functional and independent. Very independent. Of Netanyahu in particular.
And the Israeli judiciary seems to be going along with this.
Source: https://www.icc-cpi.int/about/how-the-court-works
> The ICC is intended to complement, not to replace, national criminal systems; it prosecutes cases only when States do not are unwilling or unable to do so genuinely.