Lawyers to throw 'everything' at ICC to derail Gaza war crimes case

Dozens of states and campaigners to submit briefs to court as prosecutor seeks arrest warrants for Israeli and Hamas leaders

The International Criminal Court's chief prosecutor is seeking arrest warrants against Israel's Prime Minister Benjamin Netanyahu, left, and Hamas leader Yahya Sinwar. Getty Images; AFP

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The prosecutor seeking arrest warrants for Israeli and Hamas leaders will have a plethora of legal arguments thrown at him next week by lawyers trying to derail the Gaza war crimes case, The National has been told.

Lawyers say the International Criminal Court may have “opened Pandora’s box” by allowing more than 60 states, campaign groups and lobbyists to weigh in on the highly charged case.

Pro-Israeli lawyers will try to shield Prime Minister Benjamin Netanyahu by telling judges they cannot try him under the court’s rules or the terms of a 1990s peace deal, people working on the case said.

Fearing delaying tactics, the pro-Palestine camp is urging the court to push ahead with the case against Mr Netanyahu, and have referred to a recent verdict in The Hague that declared Israel’s occupation to be illegal.

Prosecutor Karim Khan also sought warrants against Israeli Defence Minister Yoav Gallant and three Hamas leaders, two of whom – Ismail Haniyeh and Mohammed Deif – have since been killed.

Mr Khan has accused Israel of using starvation as a method of war, Hamas of abusing hostages and both sides of attacking and killing civilians.

Judges have set an August 6 deadline for countries, including the US and South Africa, and groups such as the Arab League, to offer their amicus curiae (friend of the court) submissions.

Although the process is shrouded in secrecy, The National has pieced together the main arguments from conversations with lawyers and publicly available documents.

· A key dispute is whether citizens of Israel, which is not a member of the ICC, can stand trial for their actions in Palestine, which is a member.

· Pro-Israeli lawyers will refer to the 1995 Oslo II peace accords that give Israel "sole criminal jurisdiction" over its citizens.

· But the court will hear that Oslo II is superseded by the laws of war and that Israel has discarded it.

· A second argument is that the ICC should not overstep its role when Israeli courts can investigate war crimes.

· Lawyers may also dispute the allegations against Israeli leaders, which turn on the alleged use of starvation as a method of war.

Delay fears

The legal push began when the UK was told it could intervene on Israel’s side. Although Britain’s new government later backed out of the case, the U-turn came too late to stop dozens more amicus letters going in.

“It was a mistake for the prosecutor’s court to open this Pandora’s box. The court has refused this in the past,” said William Schabas, a Canadian rights professor who is one of those set to submit a brief.

Those trying to block the arrest warrants “are not friends of the court. They’re busy bodies", he said, in comments that will be reflected in his submission.

A group of Palestinian lawyers said the initial UK gambit was merely “a cause for a delay”, when the ICC already decided in 2021 that it could handle the situation in Palestine.

“The friendly observations from a state party did not come in good faith, they were made with the intention of delaying the trial,” said Shawan Al Jabarin, director of Al Haq, a rights group in Ramallah.

Judges have not limited the scope of amicus briefs and supporters of the arrest warrants have been left second-guessing what the challenges to Mr Khan’s request will be.

“There could be all manner of arguments, the sky is the limit. Expect the kitchen sink,” said one lawyer involved in several submissions.

The lawyer said the UK could have “gone some way further to take responsibility for this mess” by changing its brief to one supporting the warrants.

Oslo dispute

A key argument is that, under the Oslo II agreement, Palestinians were not given the right to prosecute Israelis, and therefore the ICC cannot do so in their name.

The 1995 accords make or break the case because they are the "sole origin" of the Palestinian Authority's power, the European Centre for Law and Justice said in its submission.

Pro-Palestinian lawyers will try to play down the significance of the accords.

The agreement was an interim one that Israel "never regarded as binding and has since repudiated", genocide lawyer John Quigley said.

Last month's scathing opinion on Israel by the International Court of Justice, which is separate to the ICC, is also being referenced by lawyers.

The Oslo Accords "cannot be understood to detract from Israel’s obligations under the pertinent rules of international law", the ICJ ruling said.

“It’s not a serious objection,” Prof Schabas said. “We are clearly dealing with an old agreement that has never been enforced and applied, and which Israel itself repudiates because the leaders of Israel do not recognise a Palestinian state."

Court rules

The US and Germany are expected to argue that the ICC should take a step back and let any war crimes investigations play out in Israeli courts.

The ICC's founding document says the court should not step in unless a state is "unwilling or unable genuinely to carry out" a prosecution, a principle known as complementarity.

But pro-Palestinian lawyers doubt Israel's insistence that its "robust and independent legal system" will pursue war crimes claims against its leaders.

Pro-Israeli lawyers have also sought to challenge the allegations at the root of Mr Khan's investigation into Mr Netanyahu and Mr Gallant. UK Lawyers for Israel, another group submitting a brief, denies there is a famine in Gaza and says the ICC prosecutor "relied on implausible reports".

States intervening

The states involved have not disclosed their legal arguments, but many of their positions are well known.

The Czech Republic opposed an ICC investigation on the grounds that it did not consider Palestine a state. Hungarian officials claim the court is being used as a "political tool" and say they will not execute an arrest warrant.

Chile and Mexico, who are submitting together, and Brazil have all backed South Africa’s genocide case against Israel at the ICJ. Spain, Norway and Ireland jointly recognised Palestinian statehood this year.

Several countries, including the US and Germany, condemned the "equivalence" between Israel and Hamas implied by Mr Khan's request.

Despite the sensitive politics, former ICJ lawyer Stefan Talmon said he was optimistic the process would strengthen the ICC in the long term.

For years the court has been plagued with accusations that it ignores the alleged war crimes of western leaders, becoming a “court for Africa or Asia”, he said. It means the pressure to succeed now is high.

“That’s why the court is taking great pains to follow procedures as closely as possible so that nobody later says they didn’t get a choice or have their voice heard,” Prof Talmon said.