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ISRAEL AT WAR - DAY 393
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Homepage
ISRAEL CLAIMS ICC PROSECUTOR DENYING COUNTRY’S RIGHT TO PROBE GAZA WAR
ALLEGATIONS
LETTER SAYS KARIM KHAN’S REFUSAL TO SPECIFY THE ALLEGATIONS AGAINST ISRAELI
LEADERS BEFORE SEEKING THEIR ARREST MEANS HE NEVER GAVE AUTHORITIES A CHANCE TO
ACTUALLY INVESTIGATE
By Jeremy Sharon
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Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
*
*
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This handout picture provided by the Palestinian Press Office (PPO) shows
Palestinian Authority President Mahmud Abbas (R) meeting with the Prosecutor of
the International Criminal Court Karim Khan (CL) in Ramallah in the West Bank on
December 2, 2023. (Thaer Ghanaim/PPO/AFP)
In a submission to the International Criminal Court (ICC) made public on Monday,
Israel castigated the court’s prosecutor, Karim Khan, for failing to give the
country the opportunity to investigate his allegations before seeking arrest
warrants against its leaders, a fundamental principle of the ICC’s founding
charter.
In the filing, which was submitted last month but whose details were classified
by the court until October 4, Israel insisted that the Rome Statute governing
the ICC’s actions and previous court rulings requires that prosecutors provide
“sufficiently specific” information to the state under investigation about the
crimes that they are investigating, in order to give that country the ability to
inform the court that it is willing to carry out such investigations, and
prosecute when necessary, itself.
As well as panning what it said was Khan’s failure to abide by this foundational
principle of the ICC as a court of last resort, Israel’s submission also
insisted that the ICC has no jurisdiction over Israeli nationals due to specific
provisions in the Oslo Accords that stipulate that the Palestinian Authority has
no such jurisdiction, and therefore cannot delegate it to the ICC.
In May, Khan filed a request for arrest warrants against Prime Minister Benjamin
Netanyahu and Defense Minister Yoav Gallant, alleging that they had committed
crimes against humanity and war crimes in their prosecution of the war against
Hamas in Gaza following the terror organization’s invasion and massacre on
October 7 last year.
Allies of Israel strongly criticized the decision, insisting that the principle
of complementarity, by which the ICC cannot prosecute if the relevant country is
itself investigating allegations of criminal conduct, precluded an ICC
prosecution of Israel at present.
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US Secretary of State Anthony Blinken accused Khan of rushing to obtain the
arrest warrants, while two US senators accused him of “efforts to politically
target Israel.”
International Criminal Court Prosecutor Karim Khan shakes hands with Venezuelan
dictator Nicolas Maduro during a visit by Khan to Caracas to form a to return to
Caracas to form a cooperative framework for ‘positive complementarity
initiatives’ to address the severe crimes against humanity allegations made
against Maduro’s regime, April 22 to 24, 2024. (Courtesy: International Criminal
Court)
Writing in Israel’s submission to the ICC dated September 23, Israel’s legal
representative in the proceedings, Dr. Gilad Noam, noted that Article 18 of the
Rome Statute says that the prosecutor must notify a state that it is under
investigation, and that that country has the ability to inform the prosecutor
within a month that it is itself investigating the allegations and for the
prosecutor to defer his investigation for the state’s.
Despite these stipulations, Khan did not inform Israel about his investigation
into concerns regarding Israel’s conduct and that of the IDF in Gaza during the
war, beginning October 7, 2023.
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Instead, Noam noted that Kahn had relied on notification sent to Israel about
alleged crimes the ICC was investigating in March 2021, before Khan even took
office, based on a referral dating back to 2018 relating to Israeli settlement
policy and claims raised in previous “hostilities” in Gaza.
Noam also detailed Israel’s explicit request to the court on May 1 this year,
before Khan requested the arrest warrants against Netanyahu and Gallant, for
information regarding the alleged crimes he was investigating, so that Israel’s
legal authorities could investigate them itself, in line with the court’s
charter that it may only investigate and prosecute crimes where another state is
incapable or unwilling to do so.
This information was never forthcoming from the prosecutor, Noam wrote, adding
that the ICC has previously ruled in a case regarding Venezuela that the
prosecutor must define the scope of his investigation in his notification, and
that it be “sufficiently specific” in order for the country under investigation
to assert its rights under Article 18 to investigate itself.
Noam noted that an ICC “advance team” had been scheduled to arrive in Israel to
discuss the investigation on May 20, but that the visit was canceled at the last
minute and Khan announced that he was seeking the warrants on that exact date
instead.
“Despite having been forced into a bloody conflict that it did not want, Israel
remains a democracy endowed with an independent judiciary and deeply committed
to the rule of law, including the principles of international humanitarian law,”
he wrote in the submission to the Pre-Trial Chamber.
“The undeniable fact is that Israel, despite having made requests to the
Prosecution, has never received notice of the scope of the Prosecution’s
intended or actual investigation into events since 7 October 2023,” the Israeli
submission added.
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The International Criminal Court (ICC) in The Hague. (oliver de la haye/iStock)
The filing therefore requested that the Pre-Trial Chamber halt any proceedings
against Israel until sufficient notification has been issued.
The Pre-Trial Chamber’s deliberations over Khan’s request for arrest warrants
has been significantly delayed following the chamber’s decision in July to
review amicus briefs on the case submitted by third parties, including over the
issue of jurisdiction.
Dozens of briefs were filed, followed by Khan’s response, and the Pre-Trial
Chamber is now in the process of reviewing those submissions and Khan’s
response, as well as Israel’s new submission.
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When the war needs you both on the battlefield and in central headquarters, how
do you decide what to do?
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Argentina’s Javier Milei selects Jewish envoy to US as replacement for FM he
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Israeli conservationists release endangered hawksbill turtles into Red Sea
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Citing war, Netanyahu expected to request delaying his testimony in corruption
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Top Ops
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Why ending UNRWA unlocks peace
Supporters of a two-state solution should favor the dissolution of a body that
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Joshua Davidson
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Mijal Bitton
The aftermath of disaster: Noah and choosing hope
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William Kolbrener
Writers boycott (Israeli) writers
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Where is the line between antisemitism and legitimate criticism of Israel?
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Iranians should seize the moment to topple the regime
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Et tu, Bret?
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To MK Aryeh Deri, a leader of the Haredim who do not serve in the IDF
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Israel is nowhere near ready to commemorate October 7
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Home is where the hearth is
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Tiny treasure
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In safe hands
This year’s Jerusalem Design Week looks to be a port in a storm
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