@StefanTalmon 17 July 2024
BEAKING: Netanyahu/Gallant Arrest Warrants
Germany submits amicus curiae observations to ICC Pre-Trial Chamber I with regard to the Prosecutor’s application for arrest warrants for Israeli officials. After the United Kingdom Germany is the second country trying to get Israel’s Prime Minister Netanyahu and Defence Minister Gallant off the hook of the ICC.
While the UK argued that the case was inadmissible because Palestine itself could not exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords, Germany tries a different argument. Germany submits that the case is inadmissible because the question of complimentarity cannot be decided during an ongoing armed conflict; at least not at the present stage. With regard to investigations initiated by the Israeli judiciary into attacks on schools and hospitals, the Federal Foreign Office stated: “In view of the seriousness of the allegations and the ongoing conflict, this requires time and care.”
It should be noted, however, that:
- The Prosecutor has not sought arrest warrants for attacks on schools and hospitals, but for starvation of civilians as a method of warfare from at least 8 October 2023 a war crime
- Investigations into the war crime of starvation of civilians as a method of warfare seem rather straight forward (which is proabably why the Prosecutor chose to start with this crime)
- If the Prosecutor was able to investigate the crime and prepare a case-file, so should have been the Israeli judiciary
- No investigation by the Israeli judiciary into the war crime of starvation as a method of warfare has been made known to the public
- If such an investigation against Prime Minister Netanyahu and Defence Minister Gallant was in fact being conducted by the Israeli judiciary, this should be brought to the attention of Pre-Trial Chamber I by Israel or the accused before any decision on the arrest warrants
- If the question of complimentarity cannot be decided during an ongoing armed conflict, that would also apply to the arrest warrants for the Hamas leaders
In any case, Germany’s submissions of amicus curiae observations will buy some more time. News reports of today, that arrest warrants for Prime Minister Netanyahu and Defence Minister Gallant are “expected within 2 weeks” are mistaken. Under the Rules of Procedure and Evidence, the Pre-Trial Chamber must first give the Prosecutor an opportunity to respond to Germany’s amicus curiae observations (and those of any other country that by 12 July 2024 had requested leave to file such observations). It will thus be several months before the Pre-Trial Chamber will decide on the Prosecutor’s application for arrest warrants for the Israeli and Hamas leaders.