Leaders in the dock of the International Criminal Court

Interview with Yann Jurovics

What about the request to issue arrest warrants against the three main leaders of Hamas as well as against Benjamin Netanyahu and Yoav Gallant just announced by the Prosecutor of the International Criminal Court? While his statement immediately aroused a hubbub of positions, we returned to question Yann Jurovics—a lawyer specializing in crimes against humanity and former expert at the International Criminal Tribunals for the former Yugoslavia and Rwanda—for clarity.

 

 

Could you describe the process of issuing the arrest warrants requested by the ICC Prosecutor against three Hamas leaders, as well as Benjamin Netanyahu and Yoav Gallant, and its implications?

The Prosecutor of the International Criminal Court (ICC) seeks the issuance of arrest warrants. However, his applications must go through the Pre-Trial Chamber filter. Composed of three ICC magistrates, this Chamber will determine whether it allows the Prosecutor to issue the arrest warrants. It can change the application, on principle and on form, by dismissing certain charges.

The implications of arrest warrants are important: States that have ratified the Statute of the ICC, the States Parties, have an obligation to refer the people concerned to the Court since the latter does not have its own police force and cannot make arrests. For example, Israel, not being a State Party, has no obligation in this regard. However, the Israeli Prime Minister and the Minister of Defence will no longer be able to travel to State Parties without risking arrest.

A particularly interesting point is that Palestine is a State Party to the ICC. I have always claimed that his membership served a dual purpose: 1) to contribute to its statehood process; 2) to exert pressure on Hamas leaders in order to regain power.

On this second point, justice can serve a political agenda. The Palestinian Authority could still report other cases to the ICC to get rid of competitors. We can see this dynamic in action today. Palestine will be obliged to refer the individuals concerned, which is a real test of its policy of statehood. It will be keen to show its cooperation.

What’s more, the Prosecutor’s statement refers to the notion of complementarity. This message sends a warning to the political authorities: the arrest warrants could be withdrawn if the accused are tried by national courts, provided that the trial is genuine and sound.

You say—“Palestine will be obliged to refer the individuals concerned … and be keen to show its cooperation.” What does this mean in concrete terms? What options does Palestine have?

In reality, there are very few options: to judge the individuals concerned or to refer them to the ICC. The collection of evidence by Palestine and its judicial cooperation will also be scrutinized.

It seems to me that the Palestinian Authority will cooperate diligently if only to assert its status as a State worthy of the international community. It has everything to gain by proving itself capable of governing by international standards.

Why, in the text of the application for the arrest warrants, mention Hamas in the first place?

I don’t think the order is particularly important in a statement of this kind. However, one can see an attempt to balance the presentation of the charges.

The choice of the defendants is crucial for the Prosecutor, given the ICC’s limited resources. He has therefore targeted the most senior officials, those who determine the criminal policy implemented. These individuals are often referred to as “planners.”

What type of information did the ICC prosecutor base his application on? Did the outrageous statements made by Israeli leaders contribute to their indictment?

The Prosecutor gathers information submitted to him by civil society and also conducts his own investigations. His office sends investigators to the areas concerned to gather testimonies, statements, reports, and expert appraisals.

With regard to the statements made by Gallant to which your question refers, these could be used as evidence to substantiate the existence of the alleged crimes. More importantly, if the crimes are proven, these statements can also establish his full responsibility.

As far as Israel is concerned, do the charges relate to limited acts or to the general conduct of the war?

The use of armed force is prohibited under international law, but the ICC is not the guardian of this rule. In the event of armed conflict, the Court is empowered to verify compliance with international humanitarian law. Violations of this law constitute war crimes. Thus, as far as war crimes are concerned, the accusations relate to specific acts, and not to the war itself.

The situation is different for crimes against humanity for policy is one of the constituent elements of this charge. The existence of such a policy must be proven to qualify an act as a crime against humanity. The position of the defendants is decisive in this respect. If such a policy exists, those at the top are deemed to be the perpetrators.

The Prosecutor has not retained the charge of genocide. The only explanation is that he doesn’t really believe in it.

We’re talking about war crimes and crimes against humanity, not genocide…

Indeed, while any prosecutor tends to use a wide range of charges to obtain satisfaction on some of them, the choice has been made to be quite specific in this case.

The Hamas leaders have been charged with five counts of crimes against humanity (murder, extermination, sexual violence, torture, and other inhuman acts) and six counts of war crimes (murder, hostage-taking, sexual violence, torture, cruel treatment, and outrages upon dignity). Some of these crimes were committed in the context of armed action, while others were committed in the context of captivity.

The Israeli defendants were charged with four counts of war crimes, three of which were committed in two contexts (international armed conflict or non-international armed conflict), and with four counts of crimes against humanity (murder, extermination, persecution, and other inhuman acts).

The Prosecutor has not retained the charge of genocide. The only explanation is that he doesn’t really believe in it. Legal reality rules out this charge, which would weaken his case. This decision highlights the highly politicized nature of the present-day prosecution of this crime, and in particular South Africa’s claim before the International Court of Justice (ICJ).

But what does the charge of “extermination” consist of, and how is it defined by the ICC?

Extermination, like murder, constitutes an attack on life, but it includes an additional element. This charge is rarely invoked before the courts. The scarcity of case law, combined with the imprecision, or even absence of a clear definition in the Nuremberg Statute or the International Criminal Tribunals, contributes to this scarcity. Only a few indications are available. Article 7-2b of the ICC Statute states: “ ‘Extermination’ includes the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.” We note that the principle hinges on a substantial number of victims. However, this quantitative dimension remains indeterminate. The judge retains a wide margin of appreciation, linked more to the specific considerations of each case than to precise arithmetic.

 

But doesn’t the word “extermination” as clarified by article 7-2b—along with the notion of intent—refer to the idea of genocide?

This is somewhat true. So much so that in a case concerning the genocide of the Tutsis, the ICTR was able to say that “the terms extermination and destroy are interchangeable in the context of these two crimes” (case n°95-1-T, Kayishema/Ruzindana, judgment, May 21, 1999, § 630). However, this similarity in the materiality of the crime is not sufficient to equate the two charges. Other elements are required to establish the crime of genocide, in particular an intent to destroy a group as such. Genocidal intent is difficult to establish. Should the existence of a group within the meaning of this definition not be in doubt (which is precisely the point of the recent ICJ decision), then it would have to be established that this group was targeted for destruction.

Doesn’t the prosecutor differentiate between the charges against Hamas leaders and those against Netanyahu and Gallant? In other words, is the prosecutor equating Sinwar and Netanyahu?

The prosecutor is not equating the defendants. He is dealing with a case in which he identifies those most responsible. Each defendant is judged only for his or her own actions. I could put it this way—judging a British soldier for a war crime committed in 1944 is not the same as putting him on the same level as Hitler.

The indictments will not bring the accused together. There will be separate indictments, and we’ll be able to discuss and refute the idea of equating them, which I understand may seem problematic to some.

There is, however, a major problem—listing the charges against the leaders of Hamas at the same time and in the same text as the one listing the charges against Netanyahu and Gallant draws a parallel between the defendants. This parallel approach is actually the point that has been most debated, and rightly so, since the information was released. The cold legal reading is counterintuitive—and perhaps politically naive—since this text is clearly problematic in symbolic and political terms? Was it not possible to produce differentiated requests, at different times? To take up the elements of your previous example—What would be the significance of a double application for an arrest warrant which, after the Second World War, would combine in the same text charges against a British soldier for war crimes committed in 1944 and Hitler’s monstrosities?

The Prosecutor’s approach is obviously politicized. This approach is known as the “opportunity to prosecute” rule. His strategy must take into account the means at his disposal, the way the judges (who are independent) will read the case, and the media coverage required for any instance. And this one in particular…

In the present case, all we have at our disposal is a press release which, admittedly, reflects the decision to request the indictment of the highest representatives of the two belligerent parties. You speak of drawing a parallel… But should we deduce from the form taken by the Prosecutor’s application that there is an equivalence on his part between the actions of Hamas leaders and those of Netanyahu and Gallant? I’m far from being certain of that. Of course, he could have separated the arrest warrant applications chronologically. In doing so, however, he would have exposed himself to further criticism and, perhaps more importantly, to reproach from the judges, who would have rejected his applications. It would have been very difficult for him to face up to the accusations of partiality.

The Prosecutor’s procedure is therefore certainly political in this sense and aims to serve the best interests of his office. But I believe—and this is the most important point to bear in mind—that the indictments will not bring the accused together. There will be separate indictments, and we’ll be able to discuss and refute the idea of equating them, which I understand may seem problematic to some.

The solution may also come from the states whose nationals are implicated; they have full latitude to try the accused themselves—the Israeli courts could, for example, take over the criminal case of the two defendants—and, in this event, the Prosecutor would have to withdraw the arrest warrants.

Generally speaking, how do you interpret this episode in the context of the whole sequence of cases directly involving international law since the start of the war?

The situation has been referred to all competent international bodies. The ICJ for the interstate dimension; the ICC for the responsibility of individuals; the Security Council, the General Assembly… It would seem that international law has become an indispensable tool.

After the First World War, people wanted to try Wilhelm II. The Treaty of Versailles provided for such a measure. This was so revolutionary that no further action was taken. In 1941, the Allies announced to the Nazis that they would be held accountable for their actions. But it was not yet clear how this would be done. The Nuremberg Tribunal was not set up until the end of the war.

Looking at the situation today, we can see a real judicialization. The same trend can be observed with regard to events in Ukraine. Investigators were brought into the field during the conflict thanks to an agreement between the ICC, the Ukrainian Prosecutor General, and the cooperation of neighboring countries. This is the largest investigation team ever assembled.

Justice, by definition, serves peace. It is sometimes instrumentalized, but it follows its agenda. The Prosecutor could have withheld his mission so that the situation could gradually be resolved through political means; he has assumed his responsibilities by fully exercising his mandate.

So how do you think this episode will be treated both in the media and in the political arena?

Some supporters of the Israeli government will denounce the injustice and instrumentalization, and the shame of equating the barbarians of Hamas and the rulers of a democracy in the same proceedings. Israel’s opponents will use the episode to stigmatize the Hebrew state, denouncing these “colonial barbarians” and recalling the right to fight for independence. Nothing very new, and these formulas are well worn. Fortunately, we still have the science of law to keep us cool and clear-headed, and to remind us that international criminal justice only judges individuals, who are responsible for their own actions, and not entities.

The ICC has not issued any arrest warrants against Bashar al-Assad, the Houthis, Erdogan, or Xi Jinping for their respective treatment of the Kurds and Uighurs… How are we to understand this?

You list situations in which the incriminating acts take place on the territory of “non-Parties,” i.e., states that have not ratified the ICC Statute. The Court is therefore not competent to deal with such cases and the Prosecutor cannot request the issuance of arrest warrants for the cases you mention.

Rima Hassan, a lawyer specializing in international law and a candidate for LFI in the forthcoming European elections, immediately sent out the following tweet after the ICC Prosecutor’s request for an arrest warrant—“The representatives of ‘the only democracy in the Middle East’ will soon be brought before the International Criminal Court for war crimes and crimes against humanity. The complicity of unconditional supporters of a genocidal regime goes down in history. We will remember your names and your cowardice.” What are we to make of such an analysis?

The comments you have just mentioned are a series of approximations more akin to political polemics than to the law.

The use of quotation marks to refer to Israeli democracy is obviously a mockery. However, the fact that the leaders of a state have led that state into armed conflict, or that they are responsible for crimes under international law, in no way detracts from the democratic nature of a state. Contemporary examples of this are legion.

Criticism of “unconditional support” stems from another fantasy—i.e., that such support can be only thoughtless and devoid of nuance. The aim is to create two antagonistic camps rather than to find solutions.

Let’s hope that political positions will be more subtle. In any case, the legal position is very nuanced and does not aim to support a regime or individuals, but to apply rules in all areas (state-building, international justice, drawing up borders, sharing resources, etc.).

The reference to a “genocidal regime” is therefore a political condemnation. To date, Israel’s behavior has never been described as genocidal. And I would remind you that, in his request for arrest warrants, the Prosecutor does not use the charge of genocide at all.

Lastly, I don’t know who the “we” is referring to when she says “[w]e will remember your names.” It certainly doesn’t refer to the international community, which at least partially assumes its responsibilities via the ICC; it surely refers to the author and her supporters, of whom there are many. 

Rather than simplifying everything, perhaps it’s time to re-read Die Schuldfrage [literally: “the question of Guilt,” a book by the philosopher Karl Jaspers published in French under the title La culpabilité allemande], which shows that guilt cannot be collective.

*

Postscript of May 25

On May 24, following an urgent request for provisional measures submitted by South Africa on May 10, 2024, the International Court of Justice (ICJ) in The Hague issued its conclusions. Most of the press reported that the ICJ ordered Israel to “immediately” halt its military offensive at Rafah.

We asked Yann Jurovics to give us his take on the new provisional measures ordered by the ICJ.

Yann Jurovics: For the fourth time, South Africa has asked the Court to demand a ceasefire. The request raises two legal questions: 1) Do developments in Gaza, and particularly at Rafah, justify additional measures? 2) If so, what measures should be adopted?

There has been a great deal of legal debate about whether new measures should be adopted – a debate that pits interventionist judges against those who rule out what they call “micro-management” of a conflict. Indeed, some judges believe that there is no new situation, just the evolution of forces on the same ground. Others consider that the situation in Rafah generates a new risk.

Taken in this context, the decision seems measured. In particular, the court ruled that “the State of Israel [must] (…) immediately halt its military offensive, and any other action carried out in the Rafah governorate, which would be likely to subject the Palestinian group in Gaza to conditions of existence capable of bringing about its total or partial physical destruction”.

K.: In other words, it’s not accurate to deduce, as Le Monde, for example, titled one of its articles: “The International Court of Justice orders Israel to ‘immediately’ halt its military offensive at Rafah.” The “immediately” is conditional.

YJ: Yes. Accompanying its ruling, the Court publishes five statements or dissenting opinions by the judges, which give a better understanding of the issues at stake and the decision: nothing in them prohibits Israel from continuing its operations at Rafah as long as they are not likely to create “conditions of existence capable of bringing about its physical destruction in whole or in part”.

The terms in question refer to Article II-C of the Genocide Convention, and very clearly reflect the warning to Israel, already expressed in previous decisions, to ensure that military operations do not turn the situation towards a crime of genocide. On the other hand, the Court does not say that such operations (which would not create the conditions in question) would be illegal; nor does it pronounce on their legality. For this is not the Court’s field of action.

Indeed, some judges have feared that the Court could become an arbitration institution in armed conflicts, which is not its role. In essence, Israel is not being asked to call a ceasefire at Rafah or elsewhere, but to be more vigilant about the nature of its decisions.

The opinions of Judges Notle, Barak and Aurescu are very interesting.

The German judge, who asked Israel a question at the hearing about the measures taken to protect the Palestinian population, stated that he remained unconvinced by the evidence submitted that the military operation had a genocidal intent. On the other hand, with regard to the humanitarian situation, he believes that Israel has not sufficiently demonstrated its ability to meet the basic needs of the civilian population.

We won’t go into the subtle and passionate details of each judge’s arguments. But it is significant to note that the judges unanimously reiterated Israel’s right to defend itself. The question remains as to the extent or form of this defense.

I would also like to note that the Court once again recalls the fate of the hostages and firmly calls for their immediate and unconditional release. These terms are very clear and show the Court’s concern for the integrity of these Israeli nationals and its absolute condemnation of Hamas’ practices.

---

Interview by Stéphane Bou and Elie Petit