Complementarity in the Palestine Situation at the ICC: Could Article 70 Conduct Render Israel “Unwilling” to Investigate Genuinely?

Complementarity in the Palestine Situation at the ICC: Could Article 70 Conduct Render Israel “Unwilling” to Investigate Genuinely?

[Toby Cadman, co-founder of The Guernica 37 Group and joint head of Guernica 37 Chambers. Dr Tomas Hamilton, Guernica 37 Chambers and Adjunct Faculty at the University of Amsterdam.

In recent allegations that Israeli officials interfered with the ICC’s work on Palestine, +972 MagazineLocal Call, and the Guardian documented a nine-year, state-orchestrated campaign of spying, hacking and intimidation against the Court. Described as deeply-disturbing attempts to pervert the course of justice, the legal commentary has discussed the potential for ICC arrest warrants under Article 70 of the Rome Statute for offences against the administration of justice, and for Dutch national investigations. Yet the alleged Israeli interference also holds relevance for the admissibility of ICC cases under the “unwillingness” criterion of Article 17 of the Statute. 

Even though Israel is not a State Party, and is unlikely to engage with the ICC, procedural avenues exist to challenge the admissibility of cases against Israeli officials by arguing that  national investigations are underway, such that the same case is inadmissible at the ICC. However, the allegations that Israel interfered unlawfully in the Prosecutor’s investigations would be a strong factual indicator that, instead of being willing genuinely to investigate, Israel has been simply attempting to shield defendants from ICC proceedings. In this regard, Israel might look to how the Office of the Prosecutor (“OTP”) addressed similar issues in the Preliminary Examination into Iraq/UK in its decision not to proceed on 9 December 2020, wherein the OTP considered evidence that UK authorities had orchestrated a “cover-up” to protect members of the British armed forces from ICC prosecution.

The Palestine Arrest Warrants 

On 20 May 2024, in the Situation in the State of Palestine the Prosecutor of the ICC, Karim Khan, applied for arrest warrants against three Hamas leaders – Yahya Sinwar (head of Hamas in Gaza), Mohammed Deif (commander of Hamas’s military wing) and Ismail Haniyeh (head of Hamas’s political bureau, based in Qatar) – and Israel’s prime minister Benjamin Netanyahu and Israel’s Minister of Defence Yoav Gallant. The announcement was accompanied by a Report of the Panel of Experts in International Law (which states, inter alia, that “the Panel did not advise on issues related to the admissibility of cases”). 

The next stage in the ICC proceedings is for Pre-Trial Chamber I to consider whether to authorise the warrants pursuant to Article 58 of the Statute on the basis that there are “reasonable grounds to believe” the individuals perpetrated the alleged crimes. In deciding whether to issue the warrants, the Chamber will not consider the admissibility of the case and the existence of any Israeli criminal investigations.  

On 3 June 2024, the former ICC Prosecutor, Luis Moreno-Ocampo argued that Israel should open an independent investigation into Netanyahu and Gallant in order to “stop the ICC case”. A genuine investigation would be the right course of action for Israeli authorities to demonstrate their commitment to international humanitarian law, and Israel could launch domestic investigations without recognising the legitimacy of the ICC. In order to stop an ICC case, Israel (or the individual suspects) would need to file a motion to Pre-Trial Chamber I under Article 19 challenging the admissibility of a case. This is usually done once an arrest warrant has been issued. 

This blog post argues that, in assessing any such challenge, Pre-Trial Chamber I would almost certainly need to take into account the serious allegations of Article 70 interference when considering whether any such investigations are a “genuine” attempt to bring Netanyahu and Gallant to trial, or rather, a sham to shield them from justice. The post considers only the arrest warrants against Netanyahu and Gallant in light of the interference allegations, without seeking to detract in any way from the extreme seriousness of the crimes under investigation in relation to the three Hamas leaders 

Allegations of Interference 

The allegations of Israeli interference were published on 28 May 2024 as the result of a joint investigation by +972 MagazineLocal Call, and the Guardian. Israeli site Haaretz said it had been ready to publish the allegations in 2022 but Israeli security officials intervened to block publication. 

If established as credible, the allegations demonstrate a catalogue of state-orchestrated incidents that targeted the ICC over a long period of more than nine years. The fact that threats were alleged to have been made to former Prosecutor Fatou Bensouda and her family and attempts made to offer incentives, constitutes a direct threat to the independence of the institution and an affront to justice. Amongst the allegations, Shin Bet and Military Intelligence are said to have hacked and digitally intercepted correspondence between Palestinians who were passing information to the court and its staff. The ICC recently told DW it was taking enhanced security measures in response to a number of national agencies hostile towards the Court.

To compound the alleged political interference with the Prosecutor’s work, on 4 June 2024, the US House of Representatives passed a bill to sanction ICC officials –‘the Illegitimate Court Counteraction Act‘– by a vote of 247 (including 42 Democrats) to 155. The sanctions would restrict entry into the US, revoke visas, and impose financial restrictions on anyone at the ICC involved in trying to investigate, arrest, detain or prosecute “protected persons,” or allies of the United States. It would also cover anyone who provides “financial, material or technological support” to those efforts. The bill is unlikely to pass the Senate and President Biden has expressed opposition to such sanctions. 

This all demonstrates the very real pressure on the ICC Prosecutors, past and present, and the challenges of walking the path that Karim Khan has taken. The Prosecutor’s mandate is to act without fear or favour and to be guided by the evidence, not threats or political persuasion, and Khan’s response to attempts to discredit and influence him has been to express that he is acting with the utmost care and deliberation and to seek the independent assessment of the evidence from the Panel of Experts.  attempt to circumvent or corrupt the administration of justice must be properly addressed.

“Offences Against the Administration of Justice”

It is quite clear that these are matters that fall within the jurisdiction of the ICC under Article 70 of the Rome Statute. Any person who has attempted to obstruct the independent investigations of the Prosecutor may be guilty of “offence against the administration of justice” under these provisions. As Karim Khan himself said when announcing the request for the issuance of arrest warrants “if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse”. That could not be clearer than now.

The ICC has previously tried and convicted individuals under Article 70. In the Kilolo case, Jean-Pierre Bemba Gombo and four others were found guilty in 2016 in relation to the false testimonies of defence witnesses. Charges were confirmed in the case of Kenyan lawyer Paul Gicheru in 2021 for the alleged bribery of a number of witnesses in the ICC case against William Ruto – the then President of Kenya. The Trial Chamber terminated proceedings in 2022 after Gicheru died in suspicious circumstances while ICC judges were deliberating on his conviction.

The facts of the alleged Israeli interference would place this offending in a qualitatively different category to previous Article 70 cases. No previous situation would have involved such state-orchestrated, planned and coordinated espionage, over such a lengthy period of years, involving physical threats and financial bribes, with the alleged connivance of senior officials of the State political, military and intelligence structures.

The Principle of Complementarity 

What is the impact of Israel’s alleged Article 70 conduct in relation to the Prosecutor’s ongoing investigations in the Palestine Situation? The so-called “principle of complementarity” is reflected in Article 17(1) of the Rome Statute: 

the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

This entails that an ICC case would be inadmissible under Article 17 where two requirements are met. Firstly, Israel needs to demonstrate the case is being actively investigated – the domestic proceedings must involve actual investigative steps against the individual for substantially the same conduct (the “same case/same conduct” test). Secondly, the ICC must refuse to proceed unless Israel is found to be “unwilling or unable genuinely” to carry out the investigation or prosecution.

In determining the second requirement, one of the three forms of “unwillingness” under Article 17(2) is:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court […]

For a recent analysis of the complementarity principle in relation to the Palestine arrest warrants, see Kevin Jon Heller’s post here.

An Israeli Investigation 

The operative criterion in an Article 17 assessment in the Palestine Situation would probably be “unwillingness”, rather than the question of whether Israel’s judicial system is “unable” to investigate and prosecute. On 22 May 2024, David Luban wrote:

Israel can stop the ICC investigation in its tracks by launching its own investigation. Under the ICC’s founding principle of complementarity, a case is “inadmissible” if it is being “investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” (Rome Statute art. 17(1)(a)). Israel has one of the world’s most sophisticated justice systems. It is clearly able to investigate the charges.

It might be argued that Israel has an independent judiciary and a functional national criminal justice system. But the question would not be about the soundness of Israel’s legal system. It would be about the investigative steps taken in relation to the same conduct under investigation in ICC cases. If senior members of Israel’s political, military and intelligence structures were trying to block ICC cases, could Israel be said to be willing, “genuinely”, to investigate and prosecute those same cases at the national level? 

 “Unwillingness” based on “Intent to Shield” 

In accordance with Article 17(2)(a), “unwillingness” would be established if Israel’s proceedings are intended to shield suspects from being held accountable. In essence, this would involve an assessment of whether there is a real attempt to bring justice in the case at the national level or if domestic investigative steps are in fact undertaken as a tactic to stymie the ICC’s work. On the possibility that Israel would conduct “sham proceedings”, Tom Dannenbaum commented on Just Security “it is important to pay attention to the rigor and nature of Israel’s existing domestic investigations (an issue that is currently drawing some scrutiny).”

The OTP has elaborated its position on the “intent to shield” admissibility criterion in its Policy Paper on Preliminary Examinations of 2013: 

Intent to shield a person from criminal responsibility may be assessed in light of such indicators as, manifestly insufficient steps in the investigation or prosecution; deviations from established practices and procedures; ignoring evidence or giving it insufficient weight; intimidation of victims, witnesses or judicial personnel; irreconcilability of findings with evidence tendered; manifest inadequacies in charging and modes of liability in relation to the gravity of the alleged conduct and the purported role of the accused; mistaken judicial findings arising from mistaken identification, flawed forensic examination, failures of disclosure, fabricated evidence, manipulated or coerced statements, and/or undue admission or non- admission of evidence; lack of resources allocated to the proceedings at hand as compared with overall capacities; and refusal to provide information or to cooperate with the ICC.

The approach of the OTP to “unwillingness” can be seen its decision not to proceed in the Iraq/UK Situation. The OTP rejected allegations of a UK “cover-up” by former members of the Iraq Historic Allegations Team (IHAT) to the BBC Panorama programme and the Sunday Times, which would have obviated genuine IHAT investigations into allegations against UK soldiers. The OTP considered evidence in relation to interference with the IHAT including whether there had been “intentional disregarding, falsification, and/or destruction of evidence as well as the impeding or prevention of certain investigative inquiries” and whether cases were improperly and prematurely terminated due to pressure from the Ministry of Defence, the UK Government and public criticism. 

The OTP ultimately rejected the UK cover-up allegations, but found they would have been “of direct relevance” to the genuineness assessment:

Verification of these allegations could have established a basis to seek the opening of an investigation by the ICC, since the relevant domestic proceedings would have been demonstrably vitiated by an unwillingness of the State concerned to carry them out genuinely.

In the current Palestine Situation, if it were to be established that Israel sought to unlawfully interfere with the ICC’s investigations, the corresponding domestic proceedings would be “demonstrably vitiated” by Israel’s unwillingness to carry them out genuinely. A Pre-Trial Chamber considering a challenge to Article 17 case admissibility would therefore pay close attention to evidence, including from Israeli informants, of organised attempts to derail the Prosecutor’s investigations. 

Evading ICC Admissibility was an Express Purpose of the Alleged Interference

In addition to what we have already said about the impact that an alleged Israeli intelligence operation would have, in general, on the assessment of “unwillingness”, there are specific concerns in the +972 Magazine/Local Call/Guardian reporting. Namely, it appears to have been an express purpose of Israeli attempts at interference to gain information about the progress of ICC investigations in order to pre-empt and prevent prosecutions. 

According to senior Israeli jurists cited in the +972 report, Israel scrutinised the Iraq/UK decision from 9 December 2020 in the hope the Prosecutor would take a similar decision on Palestine. In view of the Iraq/UK precedent, the Israeli intelligence-gathering operation developed a “a close collaboration” with the Israeli Defence Forces (IDF) military justice system to enable investigations into the same cases, seeking therefore to oust any ICC cases on the basis of complementarity: 

According to [senior Israeli jurists], a central goal of Israel’s surveillance operation was to enable the military to ‘open investigations retroactively’ into cases of violence against Palestinians that reach the prosecutor’s office in The Hague. In doing so, Israel aimed to exploit the ‘principle of complementarity’.

According to the reports, surveillance information about the scope of ICC investigations would be shared with the IDF military justice system and the Joint Chief of Staff’s Fact-Finding Assessment Mechanism (FFAM). As the reports note, the FFAM has been investigating dozens of incidents in Palestine, including the Jabaliya refugee camp bombings from October 2023, the “flour massacre” of more than 110 Palestinians in March 2024; the drone strikes that killed seven World Central Kitchen employees in April 2024, and an airstrike in a tent encampment in Rafah that ignited a fire and killed dozens in May 2024.

When Could Israel Invoke Complementarity?

At the investigation stage of a Situation, States can force the Prosecutor to defer investigations under Article 18 of the Rome Statute. The state in question has one month from the date of receipt of the Prosecutor’s notification of the opening of an investigation to inform the Court about relevant national investigations. If a state does so, the OTP must defer its investigations pending a Pre-Trial Chamber decision on the national proceedings. 

Bensouda notified the relevant states in March 2021 that she was initiating the Palestine investigation. Since Israel did not exercise its right to inform the Court within the one-month period, this point is now moot. In relation to the arguments raised by Yuval Shany and Amichai Cohen in their Just Security posts, the lex lata of the Rome Statute appears clear on this point and allows only one month from notification of the opening of the investigation. It is normal, and consistent with the ICC’s practice in other situations, that the results of an investigation give rise to facts that were not known at the start of the investigation. A request for deferral in the Palestine Situation pursuant to Article 18 is no longer possible.

Under Article 19 of the Statute, however, a suspect or a state with jurisdiction may challenge the admissibility of a case (although only on one occasion). A suspect can challenge admissibility after an arrest warrant is issued. In the event Pre-Trial Chamber I issues arrest warrants for Netanyahu and Gallant, either suspect may mount challenges to their cases. There may be more cases too. As the Panel of Experts recognised, the OTP is investigating additional crimes that are “expected to lead to additional applications in the future” (these could be for warrants against new suspects or additional charges on existing warrants). 

A state must make an Article 19 challenge at the earliest opportunity, which is normally after an arrest warrant has been issued (since the allegations are then sufficiently particularised). Arguably, since the factual bases for the Prosecutor’s application for warrants against Netanyahu and Gallant are quite detailed, Israel may be in a position to launch a challenge immediately.

Concluding Thoughts

It should now be apparent that the multifaceted accusations against Israel –that its state apparatus took active measures to shield its nationals from prosecution in the Palestine Situation– amount not only to criminal conduct under Article 70, but they may also render Israel “unwilling” to investigate genuinely. This would be consistent with the centrepiece of the ICC’s architecture – the principle of complementarity.

In the event that arguments are raised before Pre-Trial Chamber I pursuant to Article 19 as to the existence of national investigations under Article 17, the Chamber may be called to assess the credibility of two somewhat contradictory propositions: (i) Israel’s prosecuting authorities have been investigating the same cases that are under ICC investigation, and (ii) at the same time, Israel has spied on, surveilled and sought to intimidate the OTP as part of a “covert operation [that] mobilized the highest branches of Israel’s government, the intelligence community, and both the civilian and military legal systems” with a view to blocking those same cases. 

On 22 May 2024, a week prior to the publication of the Guardian/Local Call/+972 allegations, the state of play in the Palestine Situation was summed up by David Luban:

It may be that Israel is investigating war crimes allegations against individual IDF fighters on the ground – but it shows no intention of investigating Netanyahu and Gallant, and these are the men the prosecutor has accused. It is not too late for Israel to exercise complementarity by investigating the accusations against its leaders.

Indeed, it is still not too late. But if Israel had been considering opening a domestic investigation into Netanyahu and Gallant with the intention to, as Luban said, “stop the ICC investigation in its tracks”, the recent allegations of interference make it considerably harder for Israel to claim it is doing so “genuinely”. 

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