On the ICC arrest warrants for Netanyahu and Gallant

Interview with Yann Jurovics

What are the implications of the arrest warrants issued by the ICC against Netanyahu and Gallant? Should they be seen as a political judgment? To clarify the legal implications of this decision, K. went to interview legal expert Yann Jurovics – whom we had already interviewed about South Africa’s case before the International Court of Justice, as well as about the request to issue arrest warrants before the ICC last May.

 

 

Whether on the side of Israel’s critics or its defenders, one hears political interpretations of the ICC’s decision to issue arrest warrants for Netanyahu and Gallant. Critics see it as a condemnation of Israel’s criminal policies, while defenders see it as an act of antisemitism. What is the political dimension of this decision?

Y.J. : A court decision has no political basis. It’s legalistic. What’s more, it’s not Israel that’s being sued. If Israel were being prosecuted, the issue would be the possible unlawful use of armed force, which does not fall within the jurisdiction of the ICC. Rather, the ICC aims to rule on certain modalities of the use of force, and only those modalities.

So the ICC is not ruling on the war itself and its quality (just/injust), but on the way it is conducted by the people responsible for its concrete conduct? And in a democracy, these people are the government, not the military?

Y.J. : Exactly. The ICC is concerned with the responsibility of those in charge. We’re talking here about two types of responsibility: on the one hand, that of those who gave the orders and organized the possible criminal strategy; on the other, that of hierarchical superiors for the acts of their subordinates which they neither prevented nor punished. The former are often political leaders, the latter military officers.

If the judges did not make a political decision, what about the prosecutor? Can it be said that he’s set his sights on Israel?

Y.J. : The prosecutor has a political agenda, but not in the usual sense. He manages a department with limited resources and has to decide whether or not to prosecute. That’s why he’s the only political player at the ICC. I don’t have the impression of a relentless pursuit. I think the prosecution of Israel serves the Prosecutor’s agenda. What we’re talking about here is political expediency, the allocation of resources, the mobilization of teams and international current events. There is no reason to suspect an anti-Israeli bias. Nor vice versa.

K. What does it mean to issue an arrest warrant? If the presumption of innocence prevails, why ask for the arrest of the accused?

Y.J. : The ICC does not judge in absentia. So the accused must be arrested in order to stand trial. This in no way detracts from the presumption of innocence.

The ICC only declares itself competent if it considers that the courts of the country of which the accused are citizens are not or will not take up the case. Israel is a constitutional state with independent courts. How is it that the Court nevertheless decided to declare itself competent and issue these arrest warrants?

Y.J : Complementarity as defined before the ICC is based on a vision that leaves the initiative to national jurisdictions. So if the Israeli courts, whose legal quality is recognized the world over, take up the case against these two defendants, then the Court will have to withdraw, and it will do so.

So the Court is confident, having examined the incriminating evidence, that any court in a state governed by the rule of law would take up the case, if it had access to this evidence, and come to the same conclusions as it did, i.e. to issue arrest warrants for Netanyahu and Gallant?

Y.J.: No. The question is more technical. The Court says that, in view of its jurisdiction and mission, it is legitimate to examine the cases in question. However, if a national court were to take up a case in competition with it, it would automatically be deprived of jurisdiction.

Orban declared that Hungary would not arrest Netanyahu if he were to visit Hungary. This week, the G7 members failed to formulate a common position on the issue. How much latitude do heads of state have to obey the ICC? It’s as if heads of state can decide what happens on the sovereign territory they govern, but is it their responsibility?

Y.J. : The rantings of leaders are no more than provocations or knee-jerk reactions. States that have ratified the ICC statute have undertaken to apply its decisions. So if the accused travel to the territory of a State Party, the latter is obliged to arrest them; otherwise, it would incur international responsibility. I doubt the question will arise. The defendants won’t take that risk.

Finally, Netanyahu compares himself to Captain Dreyfus, arguing that at that time, too, it was a court that accused and condemned an innocent man. In other words, he insinuates that justice, even today, is not neutral but political. It’s easy to imagine that this suspicion of the judicial system also serves to delegitimize the legal proceedings against him in Israel. Trump uses the same strategy in the United States. But this ploy aside, is there any truth to his comparison between the workings of a French Third Republic war council and those of the ICC or Israeli courts? How has justice evolved over the last 130 years?

Y.J.: It’s a bold comparison. In my experience, no jurisdiction is more legalistic than an international court. Judges are very sensitive to the view of the international community in this respect. In the Milosevic case, the accused was even assigned amici curiae^[1] in order to make up for the absence of counsel. The International Tribunal wanted to be a model in this respect.

I recall the words of Jackson, the American prosecutor at Nuremberg, who said that the law also applied to the Nazi Defense, and that history would judge this trial by whether it respected this aspiration for justice.

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Interview by Julia Christ