The International Criminal Court Pretrial Chamber on Tuesday accepted the filings of more than 60 governments and NGOs to intervene regarding a request from ICC Prosecutor Karim Khan to issue arrests for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three top Hamas officials, including Gaza Chief Yahya Sinwar.
The ICC also said those filing could send their legal positions concerning the issues at stake by August 6.
From the volume of those filings, simply the process of gathering and analyzing the filings, let alone deciding on them after the fact is likely to take months if not longer.
A senior Israeli legal source said that around 30 of the parties were stepping in on Israel’s side, including the US, Germany, the Czech Republic, and others, while around 40 parties were coming in against Jerusalem, including South Africa, Spain, Ireland, and Brazil.
Moreover, Hungary, Argentina, and the Democratic Republic of Congo are all intervening on Israel’s side, the Jerusalem Post understands.
On May 20, Khan filed his request to the Pretrial Chamber to approve the arrest warrants, charging that there was a reasonable possibility that he could prove that Netanyahu, Gallant, and the Hamas leaders had committed various war crimes.
ICC grants extensions for interventions
However, England had requested to intervene on the issue in June. In response, the ICC granted an extension until July 28 to file its position.
Meanwhile, the ICC also granted other countries and NGOs the right to request to intervene until July 28. Now those other parties have two more weeks to file.
Despite the months-long built-in delay, the fact that the ICC is only giving the various parties a couple of weeks to respond could signal that it will not let the process be drawn out as much as it did concerning Palestinian statehood.
In December 2019, Khan’s predecessor as ICC Prosecutor, Fatou Bensouda, asked the ICC to allow her to open a full criminal probe against Israel relating to the 2014 Gaza war and the settlement enterprise. Israel opposed the process saying that – among other things – since the UN Security Council has not recognized the State of Palestine, and Israel is not a party to the ICC, it lacked jurisdiction to intervene.
Dozens of countries and NGOs intervened on both sides and the ICC did not decide in favor of Bensouda by a split 2-1 decision, including declaring that Palestine was a state at least for ICC purposes, until February 2021.
However, that process moved slower from the start.
One of the arrest warrants Khan wanted was for Hamas military chief Mohammed Deif. Given that Deif is believed to have been eliminated in an Israeli airstrike on July 13, that warrant may get frozen or dismissed.
A major issue that the ICC will likely need to address is the issue of complementarity: the idea that the Rome Statute does not permit the ICC to intervene if a country probes its citizens.
The IDF recently disclosed to the Jerusalem Post that it has opened 75 criminal probes and around 60 operational probes, many of which could lead to later criminal probes, regarding IDF conduct during the current war.
These probes could prevent the ICC from seeking to prosecute Israeli soldiers.
However, Israel has not yet undertaken any probe of the legality of its war cabinet officials’ decisions, such as Netanyahu and Gallant.
The Post recently reported that the government is at an advanced stage of considering establishing a state commission of inquiry narrowly focused on that issue (as opposed to the October 7 failure to prevent Hamas’s invasion which Netanyahu is dead set against) to block or postpone any ICC arrest warrant.
It is unknown whether Israel will decide to now move forward with the state inquiry to empower those jumping to its side, or whether it will wait to see how the process develops in the hope that it might still not need to field such a state inquiry.
The International Court of Justice’s ruling last Friday that Israel’s presence in the West Bank is illegal could also influence both Israeli and the ICC Prosecutor’s strategy, given that to date Khan has not gone after Israel regarding the settlement enterprise.
If Khan does go after Israel concerning the settlement enterprise, he might also need to consider petitions made to him to intervene in the Turkey-Cyprus occupation situation, an issue the ICC has tried to avoid taking a position on to date.
The ICC first opened a preliminary probe of the Israeli-Palestinian conflict in 2015.
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