The ICC Prosecutor’s Double Standards in the Time of an Unfolding Genocide

[Triestino Mariniello is Professor of Law at Liverpool John Moores University (UK). He is also Member of the Legal Team representing Gaza Victims before the ICC. This post is written in his personal academic capacity.]

On 3 December 2023, the Prosecutor of the International Criminal Court (ICC) concluded his first mission to Israel and Palestine. In Israel, the Prosecutor met with survivors and the families of victims of Hamas’ attacks of the 7 October; in Ramallah, Palestine he held meetings with Palestinian officials and victims from Gaza and the West Bank. Since the beginning of his mandate in June 2021, the Prosecutor has been relatively quiet on the Palestine situation, except for his pledge to visit Palestine at the 21^st ASP session. However, from his 29 October visit to the Rafah border onwards, Khan issued media statements and published an op-ed in The Guardian. While the Prosecutor’s recent interest in the Palestine situation is welcome and long overdue, a critical analysis of his approach before and after 29 October can lead one to raise questions about double standards persisting in relation to this situation.

The Palestine Situation and Prosecutorial Passivity before the 29^th of October 2023

At times, Prosecutor Khan has shown a welcome ability to ensure his Office reacts promptly to the alleged commission of international crimes. However, the lack of meaningful progress in the Palestine situation has been strongly criticised. While it took the Prosecutor only one year  to identify concrete cases in the situation in Ukraine, he has not requested any warrants of arrest or summons in relation to Palestine and Israel in the two years and half since he was sworn in on 16 June 2021, inheriting an opened investigation into the situation in Palestine from his predecessor.

A few things suggest that the Palestine situation has not been a priority for Khan before October 2023. It seems that no ICC investigator has ever visited Israel or the Palestinian territory. A further signal of the Court’s paralysis in the Palestine situation is the allocation of resources (contra, see here): the Office of the Prosecutor (OTP) assigned no funds to the Palestine situation in 2022 (the budget was finalised on 16 August 2021). In 2023, Khan allocated the lowest budget (944.1 thousands of euros) among all active investigations to the Palestine investigation (one fifth of the budget of 4,499.8 thousands of euros to Ukraine for which the Prosecutor had called upon states to provide voluntary contributions; (almost) one fourth of the budget of 3.506,3 thousands of euros to Sudan; and half of the budget of 1,917.8 thousands of euros to the Philippines ). The way in which the Prosecutor had approached the Palestine investigation appears to be in sharp contrast to the Ukraine situation. After the beginning of the Russian full-scale invasion, Khan undertook several visits to Ukraine, attended press conferences, opened the Court’s biggest field office, deployed 42 investigators, opened an online portal to collect evidence, and raised unprecedented amounts of funding from various states. These were the same measures Palestinian human rights groups have been requesting for a while, yet to little or no avail. According to civil society organizations in Palestine, despite repeated requests for a similar commitment to accountability, the Prosecutor ‘never sought outside money for the ICC’s Palestine investigation, never spoke about a “crime scene”…, never sought to visit Palestine’. Since June 2021, the Prosecutor had not provided any updates on the Palestine investigation.

Moreover, in contrast to his predecessor Fatou Bensouda, the current Prosecutor had also failed to issue any preventive statement. The OTP policy paper on preliminary examinations explicitly mentions the possibility of adopting ‘public, preventive statements’. In previous years, Bensouda’s preventive statements arguably had some deterrent impact. For example, following Bensouda’s preventive warning, Israeli authorities stopped the already planned eviction of the Bedouin communities of Khan al-Ahmar in the West Bank. In November 2022, 198 human rights organizations asked Khan to issue preventive statements in relation to the escalation of violence in Palestine and Israel’s repression of Palestinian civil society organizations. This request was completely ignored by the Prosecutor. One might argue that ignoring calls for an early warning statement was due to the Prosecutor’s scepticism towards the policy in question. However, this is unconvincing. In relation to Ukraine, the Prosecutor issued the first of a number of preventive statements shortly after the start of the Russian 2022 invasion.

A Shift in The Prosecutor’s Approach to the Palestine Situation Since the 29^th October 2023

The Palestine situation constitutes one of most widely documented contexts of alleged commission of international crimes. It took to the Prosecutor 23 days since the Hamas attacks (1,139 killed in Israel and 8.005 deaths in Gaza, including 3.324 children), to take direct and public action in the situation in Palestine. On 29 October, Khan visited the Rafah crossing point between Gaza and Egypt, which was a welcome and much-needed step. Nonetheless, the Prosecutor’s most recent actions have raised serious concerns that his likely future choice of cases will constitute a further example of the widely-criticized practice of selectivity and double standards at the ICC.

Engagement with Victims

In November, the Prosecutor met Israeli victims of the 7^th October attacks and their lawyers in The Hague. His subsequent visit to Israel at the end of November came ‘at the request and invitation’ of the Israeli victims. Prosecutor Khan’s availability to promptly meet victims of alleged international crimes and their lawyers is exactly what one would expect from the ICC Prosecutor. And yet, his commendably rapid response to the requests of one group of victims, but not the other which had also asked to meet, is puzzling. The appearance might arise that the Prosecutor has, knowingly or not, discriminated victims on the basis of their nationality or ethnicity. The contrast between the prompt meetings between the Prosecutor and Israeli victims, and his previous persistent unwillingness to meet with Palestinian victims, their legal representatives, and Palestinian human rights groups, was bound to raise serious concerns. The contrast with the approach adopted by the former Prosecutor Fatou Bensouda is also stark. She constructively engaged with Palestinian human rights groups that cooperated with her office. Yet Prosecutor Khan turned down calls from Palestinian victims and their legal representatives, who had repeatedly requested meetings. For this reason, Palestinian human rights groups took the unprecedented step not to meet the Prosecutor in Ramallah in early December 2023.

During his visit to Egypt on 29 October, the Prosecutor did not meet with Palestinian victims displaced from Gaza. When Khan finally decided to talk with Palestinian victims on 2 December, the victims’ expectations immediately turned into disappointment. The Prosecutor had planned to dedicate mere 10 minutes to hearing the stories of dozens of Palestinians, including a woman who had lost 30 family members, killed by Israel’s bombings in Gaza. Whereas in Israel, the Prosecutor visited the areas where Hamas attacks took place, in Palestine Khan refused to visit any of the hundreds of illegal Israeli settlements and checkpoints in the occupied West Bank. For all these reasons, victims feared that the Prosecutor ‘is applying double standard by solely focusing his efforts on Hamas’.

Standard of Proof

The Prosecutor’s statements on the standard of proof he intends to apply in the context of the Palestine investigation have been ambiguous and therefore contentious. On various occasions, the Prosecutor stressed that he will not ‘hesitate to act pursuant to his mandate’ once the evidence reaches the threshold of ‘realistic prospect of conviction’. In setting out this threshold Khan appears to be creating a different standard of proof at the stage of applying for arrest warrants or summons to appear, which does not have any legal basis in the Rome Statute or the Rules of Procedure and Evidence (RPE) (see also here). Scholarship has emphasised how the ‘realistic threshold’ was not the standard used for the requests of arrest warrants in Georgia or Ukraine. As already highlighted, the word ‘realistic’ ‘seems –concerningly– more about pragmatism and realpolitik, rather than about the law itself.’ As a flexible and subjective concept, the word ‘realistic’ may affect the consistent application of the Rome Statute and the ‘uniformity and certainty in the administration of criminal justice’. For instance, one might question (inter alia) whether the threshold of ‘realistic prospect of conviction’ was satisfied when the Prosecutor requested the arrest warrant against the Russian President Putin.

The Prosecutor is not new to the adoption of concepts and procedures that further expand his (already wide) discretionary powers and are invoked to justify some highly questionable decisions. This was evident in Afghanistan, where Khan’s (widely criticised) de-prioritisation measure in light of ‘poor resources’ lacked any legal basis under the Statute and the RPE. Such an obstacle was readily and creatively overcome in another situation, where the Prosecutor called upon states to provide voluntary contributions, leading many of them to commit additional funds. 

The Concrete Risk of Double Standards in the Selection of Cases

The Prosecutor’s statements issued after his recent visit to the region did little to assuage Palestinian victims’ concerns that double standards would be applied to the selection of future cases. As further indication that the Prosecutor did not preside over an effective investigation before the 7^th of October, he never mentioned any potential cases related to the scope of the (already opened) investigation. Despite the Prosecutor’s words on a potential investigation in relation to the denial of humanitarian relief to Gaza residents, his statements seem to place an emphasis on the investigation of non-state actors. This is corroborated by the fact that after his mission, the Prosecutor explicitly named ‘investigations’ only in relation to Hamas attacks and Israeli settler violence. Khan omitted a long list of well-documented acts by Israeli forces that are relevant to his investigation as they might amount to international crimes. Although Khan’s mission was ‘not investigative in nature’, the Prosecutor’s statements appear accurate and firm in condemning Hamas members’ reported acts. At the same time, Khan’s statements overlook well-documented incidents both in the West Bank including East Jerusalem, and the Gaza Strip, that might also fall within the definition of international crimes set out in the Rome Statute. With regards to the situation in the West Bank solely since the 7^th of October, the following potential crimes were not mentioned by the Prosecutor: the widespread and systematic extrajudicial killings by the Israeli Defence Forces as well as armed settlers acting under the protection of the army (319 Palestinians killed); the forced displacement of entire communities; the extensive destruction of civilian structures; reported allegations  of torture and other ill-treatment; and the massive arbitrary detention of Palestinians by the Israeli authorities. Even the announcement that the investigation will cover any core crimes allegedly committed in the context of settler violence does not appear convincing. In emphasizing settlers’ violence, the Prosecutor omits any references to the enabling role of the Israeli authorities, which raises a concern that their conduct would not be scrutinized. In fact, they should be investigated because those settlers ‘are far from individual rogue actors’ as they are ‘implementing a state policy’. It is also disappointing that the Prosecutor does not clearly link settler violence and the illegality of settlements. The transfer of civilians by the Occupying Power is a war crime that, until proven otherwise, falls within the scope of the OTP’s open investigation. One has to hope that such omission does not mean that the investigation concerning ‘transfer of civilians’, which is one of the most documented (alleged) war crimes in Israel, would slip quietly into oblivion.

With respect to the situation in Gaza, the Prosecutor stresses that Israel ‘will need to demonstrate’ that any attack impacting civilians or protected objects complies with the laws of armed conflict and that his Office is investigating the denial of humanitarian relief. However, the Prosecutor has remained silent on the reasons underpinning the inaccessibility of the Strip, which is central to the identification of the alleged international crimes. The current war on Gaza comes on top of a 16-year blockade, which is imposed by the Israeli state. This context, widely condemned by the international organizations and the UN Secretary General, may amount to a widespread and systematic attack against civilians. Moreover, one finds it difficult to understand why the Prosecutor remains silent in relation to the mass killing of Palestinians (at least 21.978 Palestinians, including at least 9.100 children, have been killed since 7 October 2023); and the extensive destruction of civilian homes (over 60% of the houses in Gaza). In particular, it is unclear why the Prosecutor does not spend any words on the forced displacement of Gaza residents (the 90% of the entire Gaza population) in a context where there is no safe place for them to go in Southern Gaza, with the serious and ever-growing risk of deporting civilians from the Strip to Egypt.

A further omission by the Prosecutor pertains to dozens of official statements by Israeli military and political leaders de-humanising Palestinians in the Gaza Strip and effectively calling for their annihilation. These include: ‘there are no civilians in Gaza’, ‘we are fighting human animals’, ‘to erase all Gaza’ or creating ‘an humanitarian crisis’. Human rights groups, UN independent experts, and hundreds of scholars have widely denounced these statements, which, taken together with the mass killing, restriction of basic conditions of life, and the forced displacement, may serve as evidence of genocide (see also here, here, here, and here).

Asymmetrical International Criminal Justice

The evolution of the situation in Palestine confirms that international criminal justice remains asymmetrical when powerful states are involved. A fitting example of this dualism are the Prosecutor’s claims of the robustness of the Israeli system, which in his words ‘is intended to ensure compliance with international humanitarian law’. This claim is countered by the fact that different UN independent Commissions of Inquiry (CoI) have reported that the Israeli court system has the effect of shielding mid to high-level Israeli military personnel and political officials from international processes (similar concerns are raised by Israeli and Palestinian civil society organizations). The UN CoI on the 2014 Gaza war highlighted the ‘procedural, structural and substantive shortcomings, which continue to compromise Israel’s ability to adequately fulfil its duty to investigate’. A different UN CoI has cast doubt on Israel’s willingness to ‘scrutinize the actions of military and civilian leadership who drafted, approved and supervised the implementation of the rules of engagement’. Similar systemic flaws have been exposed in Israeli investigations of incidents involving civilian deaths in the West Bank. Following years of close coordination with the Israeli military authorities, the Israeli organization B’Tselem announced an unprecedented policy decision to sever its long-standing communication channels with the Israeli military authorities, having concluded that its work was rather facilitating and giving effect to inherently flawed processes intended to ‘white wash’ the army’s actions.

Concluding Remarks

At this critical juncture when the international community is witnessing what highly likely amounts to an unfolding genocide in Gaza, the Prosecutor’s actions are crucial. The urgent question is not whether, but how the Israeli-Palestinian setting should be approached by the Prosecutor without either (i) offending the integrity of the Court’s mandate, or (ii) setting yet another dangerous precedent of biased (non-)application of international criminal law. In the first scenario, the selection of cases must take place on the basis of the gravity of the alleged crimes, degree of responsibility of the relevant actors and potential charges. The Palestine situation is a reminder of the Court’s role in ensuring equal access to justice for all victims without discrimination, which is especially important given that Palestinians are already subject to institutionalized discrimination. Equality and non-discrimination as well as minimum standards of fairness are key to upholding the integrity of the Prosecutor’s mandate, and hence the ICC’s overall legitimacy. Independent and impartial prioritization of cases would enable the Prosecutor to reverse the Court’s low credibility ratings. By acting in line with his mandate, the Prosecutor would vindicate the Court by affirming its ability to approach the Palestine situation just like it would deal with other investigations, which are not opposed by the United States and other powerful third States or States Parties to the Rome Statute.

As the form of surrender to political pressure, the second scenario would constitute a betrayal of the Court’s raison d’etre. Favouring the ICC’s ‘cordial relationship’ with the United States over the fulfilment of its mandate would further tarnish the Court’s image as an independent and impartial institution. Yielding to pressure from powerful states would result in further legitimacy costs for an institution that, so far, has failed to hold anyone to account in some of the most widely-documented situations of alleged international crimes, such as Iraq, Afghanistan, and Palestine. Carrying on with such double standards when faced with an unfolding genocide would mean failing the final test bench for the credibility of the Court. It would confirm the reasons underpinning the growing disillusionment in international criminal justice project in the Global South. The increasing calls for the establishment of an hoc tribunal in Gaza, including by UN senior officials, prove that the ICC’s failure to hold to account those responsible for the most serious crimes in the Palestine situation would constitute a serious challenge to the existence of the entire international justice system set up under the Rome Statute.