Arrest warrants for Netanyahu—II

1- Jurisdictional challenges, Palestinian statehood dispute: Israel contends the ICC lacks jurisdiction because from Israeli perspective it is not a sovereign state. Whereas Palestine proposes that is an independent and sovereign state as it did accede to the Rome Statute in 2015. Israel, however, contends that Palestine’s statehood still remains unresolved under international law.

• Statute of Rome and non-signatories: The States, who are not a party to the Rome Statute, can argue that the ICC has no authority over its nationals.

• Complementarity principle: a country can assert that its judicial system is capable of addressing the allegations independently; in that case, it will render the ICC involvement unnecessary.

2- Military defence argument:

• Warfare its necessity and proportionality: Defence can argue, the military actions in Gaza were necessary and proportionate to Hamas’ attacks and to the use of human shields and indiscriminate rocket fires. The civilian casualties can be claimed as collateral war damage rather than intentional targeting.

Arrest warrants for Netanyahu-I

• Distinction between combatants and civilians: Israel can claim that Hamas deliberately operates in civilian areas, making it difficult to avoid civilian harm by framing it as violations (by Hamas) of international humanitarian law.

3- Humanitarian aid blockade justifications

• Security concerns: Israel can argue that restrictions on goods entering Gaza were necessary to prevent weapon smuggling to Hamas and it was not a belligerent action being a legitimate measure under international law, aimed at protecting Israeli civilians from ongoing threats.

• Responsibility sharing: Netanyahu’s defense might assert that Gaza’s humanitarian crisis was exacerbated by Hamas’ mismanagement of resources and refusal to prioritize civilian needs.

4- Issue of knowledge and chain of command

• Responsibility: It can be argued that decisions on military operations or humanitarian aid were not made by Israeli PM directly but by lower-ranking officials, challenging the claim of “command responsibility,” a key component of ICC allegations.

• Insufficient evidence: Defence can assert that the ICC lacks concrete evidence directly linking the accused to decisions resulting in alleged war crimes or crimes against humanity.

5- Political bias as defence

• Selective prosecution: Israel has repeatedly accused the ICC of political bias. Israel’s lawyer can argue that the investigation is bias and ignores the acts of violence committed by Hamas.

• Geopolitical influences: It can be alleged on behalf of the accused that the court is influenced by international politics rather than strict adherence to justice. In other words, the defending accused can allege prejudice, racism, discrimination, exploitation, oppression, sexism and intergroup conflict.

Critical considerations

• Conducting domestic investigations: Israel can preemptively establish independent commissions or initiate investigations to address the allegations, thereby demonstrating a willingness to investigate. Israel might also invoke the principle of complementarily, rendering the ICC proceedings inadmissible.

• Political pressure: The United States, a close ally of Israel, has criticized the ICC’s investigation. It could lead to diplomatic pressure on the court to reconsider its proceedings.

The ICC has, however, dismissed jurisdictional challenges by observing that significant evidence exists on the face of record of the commission of alleged war crimes.

Command responsibility argument and ICC precedents

The international law holds military and civilian superiors to stand accountable for crimes committed by their subordinates when they knew or should have known about such crimes and failed to prevent or punish the culprits. This refers to command responsibility. In several key cases, the ICC and other international tribunals have already taken cognizance of such crimes and awarded punishments.

Examples:

Jean-Pierre Bemba Gombo (2016)

Facts: Bemba was found guilty under command responsibility, as his troops committed acts of murder, rape, and pillaging. He was accordingly convicted by the ICC for war crimes and crimes against humanity committed by his forces in the Central African Republic.

Important findings of the court:

The court observed that Bemba had effective command and control over his troops and he failed to take reasonable measures to prevent or repress their crimes. Superiors, when they have knowledge of crimes being committed, are required to act to safeguard the Innocent.

2- Thomas Lubanga Dyilo case:

In this case the principles of accountability were laid down relating to leadership roles. Lubanga, a Congolese warlord, was convicted by the ICC for recruiting and using soldiers.

The fact of Lubanga’s effective control over his forces became the cause of conviction.

3- Radovan Karadzic

• In this case, the Bosnian Serb leader Karadzic was convicted for genocide and crimes against humanity, including the Srebrenica massacre.

• Tribunal’s observations in the case:

• As a superior, Karadzic was under command responsibility whereas he failed to prevent war crimes; rather he orchestrated policies that enabled atrocities.

• The court was applied a strict standard for producing evidence to support the fact that the superior had effective control and he knew or should have known about the crimes committed. This case reinforced the principle that civilian leaders, not just military commanders, can be held responsible for actions of atrocities.

4- Slobodan Milosevic

• Overview: This trial laid a significant groundwork for command responsibility cases. Milosevic did face charges of war crimes against humanity and genocide.

• Findings:

• Active involvement of a leader in planning and tolerating crimes against humanity leads to command responsibility.

• The Court emphasized that “effective control” over perpetrators caused the offence.

Important elements in command responsibility cases

1- Knowledge:

• The superior must have known, or had reason to know, about the crimes being committed.

• The element of awareness can be established through direct reporting, circumstantial evidence, and patterns of misconduct.

2- What is effective control?

• The authority to prevent or punish the crime.

• Control is based on hierarchy, communication lines, and the leader’s influence over his subordinates.

5- Command responsibility:

• Command’s responsibility arises when a leader fails to take reasonable steps to prevent crimes or punish perpetrators.

Implications of Netanyahu’s case:

• Important points to establish knowledge:

• It appears to be an established fact that Netanyahu was aware of civilian casualties, humanitarian restrictions, and alleged targeting in Gaza.

• Military communications, public statements, and patterns of misconduct support the fact.

• Effective control:

• Netanyahu, as head of government, possesses the authority over military and humanitarian policies. The prosecution can argue that he could have intervened to prevent alleged crimes.

• Failure to act:

• The ICC would claim that Israel’s continued operations, despite warnings from international bodies about civilian harm, constitute a failure to act.

Challenges for the ICC

• Political nature:

• Netanyahu’s defense may argue that policy decisions in war are inherently complex and not comparable to direct war crimes.

• Evidence:

• Unlike previous cases involving warlords or localized commanders, Netanyahu’s defense could argue that decisions were made through collective state mechanisms, diffusing individual responsibility.

(To be continued)

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