Submissions sent to the International Criminal Court
Three independent Australian academic experts, together with AIJAC’s Dr Colin Rubenstein, have submitted a briefing to the International Criminal Court arguing against the arrest warrants being issued against Israel’s Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant.
Karim Khan Photo: X
It advances the reasons to oppose the ICC’s authority to issue the arrest warrants: lack of ICC jurisdiction, lack of reasonable grounds for arrest, procedural inadmissibility, and a well-founded perception of prosecutorial bias. Permission to submit amicus curiae observations was also granted to 70 other countries, organisations, and individuals.
Submissions were requested by Chief Prosecutor Karim Khan on May 20.
The amicus curiae (“friend of the court”) briefing was sent to the Pre-Trial Chamber of the International Criminal Court (ICC) in The Hague on August 5 after being approved to do so on July 22.
The submission to the ICC argues against the issue of arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant, which he reasons it advances to oppose ICC authority to issue the arrest warrants are lack of ICC jurisdiction, lack of reasonable grounds for arrest, procedural inadmissibility, and a well-founded perception of prosecutorial bias. Permission to submit amicus curiae observations was also granted to 70 other countries, organisations, and individuals.
The International Association of Jewish Lawyers and Jurists has also sent a submission on the following points:
- Factually, the requests arise from a fundamentally different factual context triggered by the murderous attacks committed by Hamas on Israeli territory on 7 October 2023 and Israel’s large-scale subsequent military response. As the IJL notes, even the International Court of Justice itself adopted a similar position in its recent advisory opinion.
- Temporally, the requests relate to events that occurred after the investigation was opened, specifically starting from October 7, 2023.
- In such circumstances, the Prosecutor is required to demonstrate a sufficient link to the previously opened investigation or to open a new investigation.
- Any other interpretation of the Rome Statute would confer on the Prosecutor unlimited authority to initiate open-ended, and indefinite, investigations, without needing to demonstrate that prior appropriate legal and factual analysis has been undertaken and fundamental jurisdictional requirements are met.
- This limitation is crucial to ensure respecting the principle of complementarity and ensuring proper notification to states under Article 18 of the Rome Statute.
- The ICC’s authority is derived from the delegated criminal jurisdiction of States.
- In previous litigation, the ICC’s Pre-Trial Chamber did not find that Palestine is constituted as a State under general international law. A Palestinian right to self-determination does not constitute Palestine as a State.
- The sole source of Palestinian authority to prescribe, adjudicate, and enforce criminal law is the Oslo Accords.
- The binding Oslo Accords did not simply limit the exercise of Palestinian criminal jurisdiction; they constituted the Palestinian Authority and delegated a limited authority to it. Under the Oslo Accords Palestinian authorities have no jurisdiction over Israelis in any sphere, including the sphere of criminal jurisdiction. Therefore – they could not delegate such authority to the ICC.
