Gaza, the ICJ and Future Prospects (part 2) (original) (raw)

The Gaza Situation as a Test Bench for International Justice

2012

the gaza situation as a test bench for international justice Summary 1. General overview of Gaza situation.-2. Operation Cast Lead.-3. The Goldstone Report and the call for accountability.-4. Failure of the domestic proceedings.-5. Palestine knocking at the International Criminal Court's door.-6. Recourse to the principle of universal jurisdiction.

On international law and Gaza: critical reflections

London Review of International Law, 2024

As Israel’s assault on Gaza continues into its tenth month, the language of legality has become the dominant frame of popular and political discourse. Public interest in the International Court of Justice (ICJ) and its proceedings is at a level perhaps never seen before; so too in the International Criminal Court (ICC), its Prosecutor at once urged to act and condemned for inaction, his recent request to judges for the issuing of arrest warrants both celebrated and damned. International law has emerged as the global vernacular of both condemnation and legitimation; few commentators today speak of Gaza or Palestine without invoking the language of il/legality. What are we to make of this groundswell of interest in and resort to international law? What is the significance of the current series of ICJ proceedings and popular engagements with them? How should we think about the clamorous championing of The Hague and its institutions as the harbingers of justice? The editors of the London Review of International Law invited our advisory editors and others in the academic community of critical scholars to reflect on these questions.

The 5th ICC Crime & Gaza: Incitement to Genocide as an Inchoate Crime

A factual investigation indicates that between October 2023 and December 2024, Isaac Herzog, Benjamin Netanyahu (fugitive), Yoav Gallant (fugitive), Israel Katz, Giora Eiland, Bezalel Smotrich, Itamar Ben-Gvir, and Zvi Yehezkeli (the Suspects) have publicly and directly incited others to commit genocide against Palestinians in Gaza. Many believe the International Criminal Court (ICC) has subject-matter jurisdiction over four international crimes, including genocide. But in fact there is a fifth, sui generis crime: Unlike all other modes of liability, incitement to genocide gives rise to individual criminal responsibility without having to prove the primary crime, in this case genocide, has been committed or even attempted. As an inchoate crime, incitement to genocide can and indeed must be independently investigated and prosecuted, regardless of whether the crime of genocide can be criminally proven or not. The underlying rationale is preventive: prosecuting incitement is a means to the end of preempting other genocidal acts. The International Court of Justice (ICJ) has jurisdiction over States and the ICC has jurisdiction over individuals. But the factual and legal findings of one court have evidentiary value for the work of the other court when both courts adjudicate, sometimes simoultansly, the same matter. Factually, the ICJ cited three of the above-mentioned suspects’ inciting statements and determined that it is plausible that genocidal acts including incitement may have been committed against the targeted group. A comparative analysis shows that the ICJ’s standard of ‘plausibility’ corresponds to the ICC’s standard of ‘reasonable basis or grounds to believe’ the crime has been committed, the requisite standard for investigating and issuing arrest warrants against the suspects, respectively. Legally, in January 2024, the ICJ ordered Israel to punish the inciters. In November 2024, however, the Israeli Legal Adviser to the Government informed the Israeli Supreme Court of of her decision to adopt the Israeli Attorney General’s recommendation not to open a single criminal investigation on the matter, in defiance of the ICJ’s Order. Consequently, and in accordance with the principle of complementarity, Israel’s failure to prosecute and punish an ICC crime, redirects the ICJ Order to the ICC and obligates its Prosecutor to prosecute this crime in Israel’s stead. The Pre-Trial Chamber (PTC) of the ICC has already determined that there are “reasonable grounds to believe” that some of the suspects created “conditions of life calculated to bring about the destruction of part of the civilian population in Gaza,” purportedly a genocidal act under the Rome Statute. The PTC noted that these conditions caused “the death of civilians, including children, due to malnutrition and dehydration.” The PTC explained it has decided to publish this otherwise secret decision since a “conduct similar to that addressed in the warrant of arrest appears to be ongoing.” The duty to prevent further ICC crimes or terminate ongoing ones leaves the ICC Prosecutor no discretion but to extend the investigation into the Situation in the State of Palestine in accordance with Article 54 and investigate incitement to genocide within the meaning of Article 25(3)(e) of the Rome Statute. As long as the ICC Prosecutor is in breach of the ICJ order and fails to comply with his obligations under the Statute, more than two million members of the targeted group remain at imminent risk of becoming victims of further genocidal acts and other ICC crimes which - as the ICC itself warned - appear to be ongoing. As the ICC Prosecutor himself said in an interview to Der Spiegel, in circumstances of ongoing crimes, he is under a duty to act immediately, and not “wait until everybody’s dead”.

Admissibility Clause-Dilemma Facing the ICC and the Concern of War in the Gaza Strip

This researched paper is an exposé of key legal challenges facing the international criminal justice framework and its effectiveness in the 21st Century. The Arab-Israeli war, Israel Palestinian War, Israel-Hamas War, Israel versus Islam nations in the Middle East, have been historical events whose legal solution appear always to be dwindling with time. It is in the interest of the author to open up some of the critical problematic questions under discussion by international lawyers and diplomats about the atrocities going on in the Middle East region and especially in Palestine and Israel. However, the article does not give an illusion of an immediate legal solution to the problem that has been affecting many civilians, civilian populations with their objects being destroyed with impunity. It is noted that the hostilities taking place in the Gaza Strip and the entire region present a very delicate situation in the development of international criminal justice system. It is in the interest of the article to provide points for intellectual considerations before making conclusions. You can download the entire research.

Israel’s Unwillingness: Follow-Up Investigations to the UN Gaza Conflict Fact-Finding Mission Report

International Criminal Law Review, 2012

Following Israel's 'Operation Cast Lead', the UN called upon the Israeli and Palestinian authorities to conduct investigations and prosecutions of international crimes in accordance with international standards. The measures that the Israeli authorities undertook, when carefully examined, fall short of international standards. When examined under the lens of the admissibility criteria of the complementarity principle under Article 17 of the ICC Statute, this deficient practice emerges as part of a broader policy intended to shield perpetrators and maintain a climate of impunity for those committing international crimes. The need to find alternative avenues to provide victims with access to justice calls for an interrogation of the role of international criminal justice mechanisms, such as the ICC, in the Palestinian-Israeli conflict. This article examines recent developments concerning Israel's investigations under the criteria set out by the complementarity principle.

A False Messiah? The ICC in Israel/Palestine and the Limits of International Criminal Justice

Vanderbilt Journal of Transnational Law, 2020

This Article challenges the International Criminal Court's (ICC) quasi-messianic mandate in the Middle-East. It casts doubt over the legal basis and desirability of an ICC intervention in the situation of Palestine. Despite the prosecutor's formal opening of an investigation in 2021, there exist formidable obstacles to exercising jurisdiction over Gaza and the Israeli settlements. The Office of the Prosecutor (OTP) faces an uphill battle based on complex territorial and temporal dimensions. Indeed, the admissibility hurdles at the ICC of Palestinian statehood, complementarity, gravity and the interests of justice merit close inquiry. This Article also challenges the ICC as an ideal and primary response to human rights abuses of Israelis and Palestinians. So embedded in international discourse is the prosecution preference, scant attention has been devoted to