The ASP’s Response to Israeli and US Political Attacks

[Emre Acar is a PhD candidate at Leiden University’s Grotius Centre for International Legal Studies researching “The Role of International Judicial Governance Institutions in Respect of State Resistance to International Courts and Tribunals”.]

Applications for arrest warrants against Israeli officials in the Situation in Palestine have triggered political attacks from Israel and the United States against the International Criminal Court (ICC). There is a high risk of further escalations of these attacks to extraordinary resistance in the form of non-cooperation, pressuring judges and the prosecutor of the ICC, withdrawing funding, or restricting the budget. In this post, I briefly explain the strategies and procedures of the Assembly of States Parties (ASP), the governance organ of the ICC, for responding to political attacks and non-cooperation, in short, resistance to the ICC. 

Israeli and US Resistance against the ICC Prosecutor

The ICC Prosecutor announced his arrest warrant applications against Israeli Prime Minister Benjamin Netanyahu, Minister of Defence Yoav Gallant, and three Hamas leaders, Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh for war crimes and crimes against humanity committed during the Hamas attacks in Israel and the subsequent Israeli attacks in Gaza. The Court is considering whether arrest warrants should be issued for these five individuals. 

The prospect of arrest warrants being issued against Israeli officials has prompted political attacks against the ICC, particularly from Israel, the United States, and some States Parties including the United Kingdom, Hungary, the Czech Republic, and Italy. Critiques labeled the applications outrageous, unhelpful, and a historical disgrace. Some even implied that ICC’s actions can lead to the collapse of the international judicial system. The Israeli and US resistance is based on the argument that Israel is not a state party to the Rome Statute and that the ICC cannot exercise jurisdiction over the conflict. However, there is no doubt that Palestine, having ratified the Rome Statute, falls under the ICC’s jurisdiction and the Court can exercise its jurisdiction over crimes committed by Israel in occupied territories of Palestine. Even though the legal basis of these criticisms is not sound, these politically fuelled attacks could develop into more extraordinary campaigns against the ICC.

The ICC is inherently targeted with state resistance in many forms including sanctions and criminal proceedings against the ICC judges and prosecutor, and even cyber-attacks. The Court has responded to previous attacks and arguably remained resilient. However, the political attacks from Israel and the US can differ from previous ones. The ICC is at risk of encountering extraordinary resistance as the narrative of Israeli and US criticism has transformed beyond merely denying jurisdiction to threats to target and sanction the ICC officials and efforts to prevent the functioning of the Court through intelligence activities. Potential arrest warrants against Netanyahu, Gallant, and Hamas leaders can lead to non-compliance and non-cooperation. Furthermore, some States Parties, such as the UK, a major funder of the Court, might withdraw their contributions. These prospective backlashes could significantly impact the Court’s effective functioning. 

The ASP’s Strategy for Responding to Political Attacks

The ASP is the best vehicle available to defend the ICC as direct engagement by the Court in political debates is deemed inappropriate. The ASP provides a forum at its annual plenary sessions for states to discuss, counter, and prevent resistance. However, during the inter-sessional period, the ASP Presidency, Bureau, and States Parties should take urgent measures against political attacks. In line with the IER’s recommendation, the Bureau of the ASP devised a flexible strategy for responding swiftly and adequately to political attacks and defending the Court. In this regard, the ASP Presidency holds primary responsibility. The President, in consultation with the Court, takes necessary steps to ensure an immediate response, including issuing a statement and calling an emergency Bureau meeting to decide on the course of responses. The Presidency can propose additional measures including individual or joint statements, preemptive public outreach activities, good offices, and other diplomatic initiatives.

In line with the ASP strategy, the Bureau also listed a compilation of good practices that can be used by the ASP or States Parties to respond to state resistance and threats. Most of the actions were in the form of public outreach activities or diplomatic initiatives: “joint statements, diplomatic démarches, and public expressions; pre-emptive public outreach activities; public statement from the ASP Presidency;  open letter to the concerned State; statements made by States Parties during relevant UN debates; Inter-Ministerial Network (IMN) statements.” The non-exhaustive list of potential measures was created to find a formula for responding to political attacks or threats based on lessons learned from previous political attacks. Previous responses of the ASP consisted mainly of encouraging statements of States Parties confirming their support for the ICC and initiatives by the IMN. The initial responses to the recent political attacks followed the same pattern.

Responses to the Israeli and US Threats

The ASP Presidency, the Prosecutor, and several States Parties responded to Israeli and US threats by mobilising in support of the ICC. The Prosecutor responded with a statement emphasising his commitment to fulfilling his duties under the Rome Statute with independence and impartiality. The Prosecutor also reiterated that any efforts to impede, intimidate, or improperly influence Court officials must stop immediately, warning that his Office will act under Article 70 of the Rome Statute if such behaviour persists. Similarly, the UN OHCHR Experts underscored that these attacks could constitute offences against the administration of justice.  

As part of the ASP Strategy, the Bureau held a meeting to consider possible measures. Following the meeting, the ASP President issued a public statement expressing the ASP’s concerns after threats of retaliation against ICC officials and rejecting any attempt to undermine the independence, integrity, and impartiality of the ICC. The ASP President’s statement reconfirmed the ASP’s firm standing in support of ICC and its elected officials. Significantly, some States Parties –Belgium, Spain, and Ireland– rejected the Israeli and US threats. After the applications for arrest warrants, several States Parties –Belgium, France, Maldives, Slovenia, South Africa, Australia, Spain, Ireland, Norway, Chile, and Switzerland– released statements in support of the ICC’s jurisdiction, independence, impartiality and the fight against impunity. 

Given the highly politicised nature of the case, the Prosecutor also took some preemptive measures to reduce the anticipated criticisms. For instance, the ICC Prosecutor consulted a Panel of Experts concerning the matters of jurisdiction, crimes, applicable law, and charges in the case of Palestine. The Panel unanimously supported the Prosecutor’s submission and this expert support can serve to bolster the legitimacy of the investigation in response to concerns raised by non-state parties. However, these preemptive measures have not prevented questions on the legitimacy of the Court. 

Further criticism against the ICC can target the institutional structure and functioning of the Court. In this regard, the ASP Presidency can call for an emergency meeting of the Bureau to take additional measures. During this Bureau meeting, they can encourage state representatives to make joint statements rejecting the attacks against the Court, particularly against the anticipated US sanctions. The Bureau could support bringing the issue to the agenda of the UN General Assembly. The ASP Presidency could take necessary diplomatic actions to mobilise other international organizations, especially the European Union, to express their support for the Court through declarations. 

What Next? Non-Cooperation

For the arrest and surrender of individuals subject to arrest warrants, the ICC heavily relies on the cooperation of states. If the Court decides to issue an arrest warrant for Israeli officials and Hamas leaders, there is a likelihood of encountering non-compliance and non-cooperation with this order. Only a small number of States Parties have stated they would arrest these individuals if they visit their country. In the case of arrest warrants against sitting state officials, enforcement is challenging without a regime change, and the ASP’s actions for cooperation practically aim to isolate these leaders from the international community. Similarly, the Secretary-General’s guidance which strictly limits the contact of UN officials with persons who are the subject of arrest warrants also serves this purpose.

Following the Court’s arrest warrant, the ICC notifies states and relevant international organisations. In the scenario that Israeli officials or Hamas leaders plan international travel, the ASP Presidency can invoke the Assembly’s procedures for non-cooperation to facilitate their arrest. The ASP procedures include informal and formal dimensions. Informal procedures guide urgent actions to ensure cooperation and rely on the ASP President’s initiatives and good offices in responding to an impending or ongoing non-cooperation. The most practical element of the informal procedures is the appointment of focal points on non-cooperation among Bureau member states who assist the ASP Presidency and undertake the role of tracking the travel of individuals subject to arrest warrants and informing state parties. Due to previous failures, such as with the travel of Al-Bashir, focal points also worked on improving the deficiencies of the ASP’s non-cooperation framework. They created the toolkit on non-cooperation which aims to reinforce the engagement of States Parties in preventing instances of non-cooperation, promote compliance with arrest warrants, facilitate information-sharing, and establish communication channels with key stakeholders. Under their mandate, focal points will monitor the international travel plans of Israeli officials and Hamas leaders, with the ICC Registrar notifying States Parties accordingly. 

In addition to its inter-organ strategies, as the execution of arrest warrants remains a critical challenge, the ICC regularly informs the UN regarding outstanding arrest warrants requesting its cooperation and assistance. The Registry notifies and calls non-member states to cooperate with the ICC. However, in the case of Al-Bashir, which was opened after the referral of the UNSC, none of the non-member states responded to cooperation requests. Hence, a similar outcome is anticipated regarding potential cooperation requests to the UNSC and non-member states in the situation in Palestine.

If these five individuals against whom an arrest warrant may be issued visit a State Party that fails or refuses to execute the arrest warrant, the ICC can initiate formal procedures and refer the case of non-cooperation to the UNSC and the ASP. The Bureau first holds an emergency meeting to discuss urgent actions that can bring about cooperation. The ASP President can send an open letter to the concerned state reminding its obligation to cooperate and requesting a response. Upon receiving a written response or in the absence of a response, the Bureau convenes a meeting with the representative of the non-cooperating state. In addition, the New York Working Group could convene an open dialogue involving States, civil society, and other stakeholders. The Bureau reports the outcomes of these meetings to the ASP plenary session for further discussions and actions on non-cooperation.  Previous practice of these procedures, particularly in the Al-Bashir case, showed limited success as the UNSC has often failed to act on the Court’s referrals and cooperation requests. It is unlikely that the UNSC will be able to act in support of the Court in the case of Palestine. It is therefore the responsibility of the ASP and States Parties to support the ICC in addressing non-cooperation in Palestine without receiving full support from the UN.

Conclusion

Given the risk that Israeli and US political attacks rejecting arrest warrants could escalate into targeting the institutional structure and functioning of the ICC, the responses of the ASP Presidency, the Bureau, and States Parties are key to the defence of the ICC during the inter-sessional period of the ASP. The ASP’s strategy does not provide a stronghold for the ICC without the support and cooperation of states. This strategy is based on the expectation that States Parties should honour their commitments to the ICC. The ASP Presidency generally seeks to secure support for the ICC through diplomatic initiatives, inviting States Parties and non-parties to cooperate in the execution of arrest warrants. Practically, the ICC’s cooperation requests to non-member states have mostly been unsuccessful. Recent political attacks have the potential to weaken the effectiveness, independence, integrity, and authority of the ICC. It is therefore crucial that States Parties express their firm support with public statements to prevent and counter further Israeli and US political attacks. States Parties must cooperate fully with the Court’s orders and support the ICC’s fight against prolonged impunity for the crimes committed in the Occupied Palestinian Territories and Israel.