By Saju Jakob
The Middle East experienced another episode of conflict in October 2023 when the Hamas and other militant groups attacked Israel. As expected, Israel retaliated and the conflict has been raging ever since, resulting in massive loss of life and property, especially in Palestine. What was the legality of these actions and how did international courts react?
Last December, South Africa submitted an application under Article 41 of the Statute of the International Court of Justice (ICJ) for interim measures against Israel for violation of the Convention on Prevention of Genocide at the International Court of Justice, the principal judicial organ of the United Nations. It recognised Palestinian rights against genocide, as well as South Africa’s rights to ensure that Israel complies with its obligations under the Genocide Convention as it was a member of that Convention.
Accordingly, the ICJ ordered Israel to prevent any act of genocide without delving deeply into the merits of the case and based on preliminary evidence submitted by UN officials and South Africa on January 26. It modified its order on May 24 by a 13:2 majority, requiring Israel to cease its military offensive immediately and all other actions in the Rafah Governorate that might result in its physical destruction, in whole or in part. The two minority votes came from Uganda and Israel.
A series of rulings have been issued by the Court since the litigation began. Two months after the January order, it ordered Israel to take action to prevent acts of genocide against Palestinians. Furthermore, the ICJ ruled that Israel must ensure that basic food supplies are delivered to Palestinians in Gaza without delay. The ICJ ordered Israel to report back on its progress within a month.
Additionally, the ICJ stated that it was not convinced that Israel’s evacuation efforts and related measures to enhance civilian security in Gaza, particularly those recently displaced from Rafah Governorate, were adequate to alleviate the enormous risk to which the Palestinian population was subjected.
The ICJ’s rulings are legally binding, as established in the LaGrand case in 2001. However, it is unable to enforce them.
Meanwhile, the International Criminal Court (ICC), a permanent international court distinct from the ICJ, also got into the picture. The ICC prosecutes individuals accused of genocide, war crimes, crimes against humanity and aggression. Its jurisdiction is conferred by the Rome Statute of 1998/2002. Thus, the Court may examine crimes committed by a national of a State Party or those committed on its territory or those referred to the ICC prosecutor by the UNSC. An investigation may also be initiated by the prosecutor on his own initiative.
On May 20, ICC’s prosecutor, “the very famous” Karim Khan requested arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Hamas leaders for war crimes and crimes against humanity. In the meantime, the applications will be referred to a pre-trial chamber that will decide whether there are reasonable grounds for the accusations and issue warrants accordingly. As soon as the arrest warrants are issued, all 124 signatory states will be obligated to hand over the concerned individuals if they enter their territories. In this regard, it is important to note that Israel is not a party to the Rome Treaty of the ICC. The ICC, however, can take jurisdiction over crimes committed on Palestine’s territory since the state of Palestine (Observer Status) has been a party to the statute since 2015.
Further, by doing so, Khan equated Hamas terrorists with Israel’s democratically elected leader and ignored the legal principle of complementarity and immunity. In accordance with this principle, a case is inadmissible before the ICC if it is currently under investigation by a state with jurisdiction over it. Therefore, states have priority over the ICC in cases within their jurisdiction. State heads enjoy immunity from legal action as a result of the principle of immunity.
However, Hamas is seen as a Non-State Actor (NSA), but is still subject to international law. NSAs include armed groups, terrorists, civil society organizations, religious organisations, and corporations that do not constitute states.
As NSAs lack state-like international personality, they have traditionally been disregarded as subjects of international law due to their inability to have enforceable international rights and obligations. However, in contemporary times driven by functional theory, NSAs are considered subjects of international law. This opens the avenue for enforcement.
International Humanitarian Law (IHL) or the laws of war conducted during armed conflicts and occupations are regulated in order to minimise the humanitarian effects. Non-state armed groups are also covered by IHL. As a result, Hamas and other militant groups may be held accountable under IHL. In addition, Hamas is Gaza’s de facto ruler since 2007. Palestine is also a ratified party to the ICC Treaty and all the Geneva Conventions and their protocols.
The principle of universal jurisdiction allows states to investigate and prosecute nationals from any country alleged to have committed certain international crimes within their borders. Universal jurisdiction is defined differently across the globe, as well as how it is exercised. International crimes committed in other countries may be prosecuted by a national or international court depending on the domestic legal framework as well as the facts of the particular case.
Likewise, the ICC has jurisdiction over the most serious crimes, including genocide, which affect the international community as a whole. Recently, Russian President Vladimir Putin had to cancel a trip to South Africa in the light of arrest warrants issued against him by the ICC in March 2023, despite the fact that Russia is not a signatory to the ICC Treaty. It is unlikely that Putin will travel to countries where he has a high probability of being arrested.
There is, however, a conflicting view regarding the ICC’s jurisdiction and universal jurisdiction in the current discourse. There is no doubt that the ICC can acquire extensive jurisdiction over non-state parties with the consent of the concerned non-state party and referrals by the UNSC; however, such a mechanism is inherently restrictive. As an example, if Putin were to commit crimes on Russian territory, the ICC may not be able to take jurisdiction, since the UNSC could veto any referral and the domestic laws have not incorporated the clause of Universal Jurisdiction, contrary to the case of Kenya, which incorporated the clause of Universal Jurisdiction and ICC into its domestic laws.
However, universal jurisdiction cases can be used to gain a better understanding of the manner in which states coordinate in order to arrest individuals who have committed international crimes.
There is the Pinochet case in which, following a Spanish court’s arrest warrant in 1998, former Chilean President Augusto Pinochet was arrested in London on charges of human rights violations, including murder, torture and enforced disappearances while he was in power. According to his attorneys, he is immune from prosecution as a former head of state. However, the UK’s House of Lords ruled that immunity does not apply to torture acts, allowing extradition proceedings to proceed to Spain where he could stand for trial.
The principle of universal jurisdiction was also invoked in February 2000 by a Senegalese court to convict Chad’s exiled former president, Hissein Habré, for acts of torture committed during his rule from 1982 to 1990. The issuance of the warrant will be handled by the ICC, but cases such as Pinochet demonstrate how states can coordinate to arrest a person convicted of the most heinous crimes against humanity. There are many examples of universal jurisdictions if countries are ready to co-operate with each other. Among the cases where states invoked universal jurisdiction were Israel’s prosecution of Otto Adolf Eichmann, a German-Austrian official of the Nazi Party, in 1961 and Spain’s prosecution of South American dictators.
What is the UN Security Council’s role in enforcement of judicial orders? It plays a pivotal role in the enforcement of judicial orders by the ICJ and ICC. Owing to the fact that the judicial bodies do not have an enforcement mechanism of their own, they rely on their state parties and UNSC for enforcement measures.
Article 94 of the UN Charter states that if a party fails to fulfil its obligations under ICJ’s judgment, the other party may seek recourse through the UNSC. The Council may make recommendations regarding the enforcement of the judgment. However, these recommendations can be vetoed by any of the permanent members.
Likewise, the ICC relies on cooperation from other countries for the purposes of arrest. Article 87(7) of the statute enables the Court to refer matters of non-cooperation to the Assembly of States Parties and in cases of referrals by the UNSC to the Council itself. Further, the Security Council enjoys a lot of power pertaining to the ICC. For instance, according to Article 16 of the ICC Statute, the Security Council possesses the authority to halt all ICC proceedings in cases that fall under this Article. Thus, any enforcement measure is ultimately subjected to the political considerations of the five UNSC members; two of which, namely, France and the UK, are state parties to the ICC. China, the US and Russia are still non signatories to ICC proceedings. India was very much involved in the deliberations that led up to the creation of the Rome Statute, despite the fact that it is not a signatory to ICC Treaty.
There is, however, little chance that the ICJ’s order will be enforced due to the absence of an enforcement mechanism. Any such measure would have to pass through the UNSC, where Israel’s ally, the US, holds veto power. Additionally, the arrest warrant applications submitted to the ICC will suffer from a lack of effective enforcement due to the disproportionate powers of UNSC members.
The ICC’s broad jurisdiction and the absolute immunity enjoyed by heads of states in domestic jurisdictions are likely to clash in this case. As both the US and Israel have not accepted the Court’s jurisdiction, Israeli leaders have very limited liability.
NSAs can also be prosecuted before the ICC for their actions, but the path to achieving it is tricky. Due to its absence from international forums, there is very limited scope to exert pressure on the militant group. Despite increasing international pressure on Hamas and Israel to end the war through a peace deal, the existing international legal framework remains flawed for effective enforcement. In addition to South Africa and the US, other countries such as Spain, Norway and Ireland have taken different diplomatic positions according to their political interests, while others, such as Canada, have remained neutral.
—The writer is an advocate practising before the Supreme Court