A topic of currency and significance in the sphere of international law is that of the application, by International Criminal Court (‘ICC’) Prosecutor, Karim Khan KC, for the issue of warrants for arrest of the leaders of the protagonists in the events of 7 October 2023 and conflict which subsequently ensued in Gaza in the Middle East. To address the legal issues concerning the operation of the ICC, and the factual issues which led to the application, the Queensland Bar has the benefit of the following article contributed to Hearsay by Dr Cale Davis.
Dr Davis grew up on the Gold Coast and is the son of Rob Davis, barrister, himself a regular contributor to Hearsay. Dr Davis, while a relatively young person, is highly credentialled. He obtained a Bachelor of Laws (with Honours) and Bachelor of International Relations from Bond University in 2012. In 2013 he studied for and obtained a degree of Master of Laws (Advanced Studies) at Leiden University, in the Netherlands, with the degree specialisation being in international criminal law. He was admitted as a legal practitioner in the Northern Territory in 2015 where he practised as a prosecutor.
Between 2013 and 2016 he was the assistant editor of the International Organisations Law Review. During this period he also lectured and tutored at various universities. From 2017 to 2020 he was the managing editor of the aforesaid Review. From 2017 to 2021 he undertook studies for a Doctor of Philosophy at Leiden University. He obtained that qualification in 2022, with his thesis being “Prosecutorial Discretion in International Criminal Justice”. From 2021 to the present he has been a lecturer at The Hague University of Applied Sciences.
Our thanks go to Dr Davis for his informed contribution on this legally and politically sensitive issue.
On the morning of 20 May this year, Australians awoke to the news that the International Criminal Court (‘ICC’) Prosecutor, Karim Khan KC, had filed an application for arrest warrants against senior Hamas and Israeli leaders. Among them were Yahya Sinwar, the head of Hamas in the Gaza Strip, and Benjamin Netanyahu, the Prime Minister of Israel.
This very quickly became big news across the world, and spawned the predictable barrage of condemnation and praise for the Prosecutor’s actions which traditionally follows announcements of this nature. Within the broader public, emotions ran high. The Australian government, for its part, stressed that “Australia respects the ICC and the important role it has in upholding international law”.[2] Numerous other governments, including Canada, Switzerland, and many European Union member states, adopted similar positions.
It is important for public debate about this issue to be well-informed about what the ICC is and how it operates. Unfortunately, misconceptions about international law and its institutions are widespread. Even the ABC, in an online explainer about ‘what happens next’ now that the application has been filed, made the fundamental mistake of claiming that “the International Court of Justice prosecutes states”[3] when, in reality, it does no such thing.[4] Television shows like Crossing Lines – which bizarrely depicts the ICC having its own police force – certainly don’t help.[5]
This contribution provides an explanation about the ICC’s jurisdiction and functioning. It is hoped that it contributes to a better understanding of how prosecutorial discretion is exercised at the ICC, and what the Court does.
A brief history of international criminal law
The modern roots of international crimes can be traced back to the Second World War. As the allied powers turned their minds to the end of the conflict, they faced the question about what to do with the remaining Nazi leadership. As early as 1943, Stalin proposed ‘physically liquidating’ “at least 50,000 and perhaps 100,000 of the German Commanding Staff”.[6] Churchill was similarly in favour of simply ‘bumping off certain people’.[7] Ultimately, the allies decided that this wasn’t the best idea and settled instead on creating a novel international criminal tribunal – International Military Tribunal at Nuremberg – to deal with the “major war criminals of the European Axis”.[8]
This Tribunal famously tried 22 senior Nazi leaders for their role in the holocaust. It was the only trial it conducted. Not long after, however, a series of other trials were conducted by occupying powers under Control Council Law No 10. Perhaps most famous among these were the US’s twelve trials (also held in Nuremberg) of doctors, judges, directors of the IG Farben conglomerate, and others. The reports of these trials make for haunting reading, and can be found online.[9] Together, the International Military Tribunal and the subsequent Control Council Law No 10 trials laid the foundations for the idea that there is some conduct that is so reprehensible that all of humanity has an interest in seeing it investigated and prosecuted.
After this brief but innovative period, the topic of international criminal justice entered a lull. Nothing really happened until the wars in the Former Yugoslavia in the early 1990s fostered a renewed interest in the field. In 1993, the United Nations Security Council created an international criminal tribunal – the ICTY – in response to the threat that the Balkan conflicts posed to international peace and security. Shortly after, in response to the genocide in Rwanda, the Security Council created another international criminal tribunal (the International Criminal Tribunal for Rwanda, or ‘ICTR’) to deal with that situation. The ICTR’s statute was largely a copy-paste of the ICTY’s statute (with the necessary amendments to the new tribunal’s territorial and temporal jurisdiction), which allowed both to share a common appeals chamber. This contributed to the development of unified body of jurisprudence that is still regularly drawn upon today.
The ICTY and the ICTR were, however, always intended to be temporary solutions to isolated problems. A more permanent solution to the question of how to effectively investigate and prosecute alleged international crimes needed to be found, so tribunals did not have to keep being created on an ad-hoc basis. As such, shortly after the creation of the ICTY, a concerted effort began to develop a permanent international criminal court based upon the consent of states.
These efforts began in earnest in 1995. Between then and 1998, a number of states – of which Australia was one – negotiated the agreement which would become the ICC’s founding document. Today, this document – the Rome Statute[10] – has 124 state parties, representing the majority of the 193 member states of the United Nations. Numerous other states have signed the Rome Statute but are yet to give it domestic effect.
It is important to emphasise that the ICC is not a creature which has landed on Earth devoid of history. It is the product of protracted and intense negotiations between different states. This included the United States, which was actively involved in the drafting process though, ultimately, it did not become a member. The ICC simultaneously represents the aspirational goal of ensuring that “the most serious crimes of concern to the international community as a whole” do not go unpunished while reflecting the harsh reality that its ability to achieve this goal is limited by what could be agreed by its 124 member states. It does not enjoy unlimited powers. It is, like every other international organisation, the product of consent and common ground. As a court, it has its own jurisdictional limitations and admissibility criteria.
The ICC’s jurisdiction
The subject-matter jurisdiction of the ICC is relatively small. It only has jurisdiction over four crimes: crimes against humanity, war crimes, genocide, and aggression. What makes these crimes unique is their character. They are of such a nature as to be of concern to humanity as a whole. For example, murder will only be a crime against humanity if it is committed in the context of a widespread or systematic attack which is directed against a civilian population. Torture will only be a war crime if it is committed in the context of an international armed conflict. Killing someone will only amount to genocide if the perpetrator intended to destroy, in whole or in part, a national, ethnic, racial, or religious group. Of course, there are other elements to these offences, but the point is that international crimes are those which are said to ‘shock the conscience of humanity’.[11]
The ICC’s Prosecutor does not have free reign to investigate and prosecute allegations of these crimes regardless of where they were allegedly committed or who allegedly committed them. Their personal and territorial jurisdiction is also limited. They are restricted to investigating and prosecuting only those crimes which were allegedly committed on the territory of a state party, by a national of a state party, or in situations that have been referred to them by the United Nations Security Council.
Palestine is a state party to the Rome Statute, and it has been for almost a decade. It is not a member of the United Nations but this is completely irrelevant to the question of whether it is able to become a state party to treaties (Switzerland only became a member of the United Nations in 2002). As such, the Prosecutor is free to investigate and prosecute all allegations of crimes within the jurisdiction of the Court which occurred on Palestine’s territory (regardless of who is alleged to have committed the offence), or by its nationals, since 13 June 2014. Membership to the Rome Statute is not a secretive affair. As such, all sides to the conflict are (or should be) well-aware that the ICC not only has jurisdiction over Palestinian territory but, also, that its Prosecutor has been actively investigating events unfolding within it for quite some time.
The rules on admissibility
Apart from the jurisdictional limitations placed upon the Court, the Rome Statute also imposes strict rules of admissibility that further restrict what can be investigated or prosecuted. This means that, even though the Court might have jurisdiction over the situation or the case, the unique facts of that situation or case prevent the Court and the Prosecutor from taking the matter further. There are several barriers to admissibility, though two, in particular, have the most practical effect.
The first is what is called the principle of complementarity. The ICC was set up to be a court of last resort. The ICTY and the ICTR could demand, at any time, that national authorities defer investigations and prosecutions to them. The ICC cannot. The ICC and its Prosecutor can only deal with a situation or case if a state which has jurisdiction over it is “unwilling or unable genuinely to carry out the investigation or prosecution”.[12] In other words, situations and cases can only come before the Court if national authorities have failed, due to unwillingness or inability, to execute their primary duty of investigating and prosecuting allegations of crimes within the Court’s jurisdiction.
This principle has been helpful in encouraging domestic authorities to ‘get their act together’ and conduct investigations or prosecutions locally. Historically, the Prosecutor has been hesitant to proceed with investigations or prosecutions where there was an indication that a domestic authority may, in the future, develop the capacity to progress the allegations. For example, back in 2004, the then-Prosecutor indicated that he was starting to look into an alleged 6,000 extrajudicial killings, 16,500 enforced disappearances, up to 1,300 instances of torture, and more than 700 instances of rape and sexual violence that had occurred in Colombia since 2002. This was not a full-blown investigation but, rather, a preliminary examination designed to explore basic jurisdictional and admissibility questions to decide whether an investigation was warranted.
What followed was a slow, but applaudable, effort by the Colombian national authorities to develop the domestic capacity to deal with the allegations themselves rather than see the situation advance before the ICC. This ultimately culminated in the creation of the Colombian Special Jurisdiction for Peace. In December of that year, the ICC Prosecutor announced that his office would not be proceeding with a full investigation into Colombia because it had demonstrated that it was willing and able to genuinely investigate and prosecute the allegations, and signed a cooperation agreement with the domestic authorities – 6,359 days after the preliminary examination was first announced.
This means that, if the subjects of an arrest warrant application are genuinely investigated or prosecuted by a domestic authority for the conduct for which they are wanted by the Prosecutor, they cannot be tried before the ICC for that same conduct. ICC Prosecutors have made no secret of the fact that this is actually the ideal situation. States have the primary responsibility to investigate and prosecute allegations of international crimes. If domestic prosecuting authorities fulfilled this obligation – which they obviously should be doing – intervention by the ICC Prosecutor is not only unnecessary, but expressly prohibited.
The second important admissibility criteria is the gravity of the allegations. The ICC was designed to only investigate and prosecute those most responsible for grave international crimes. To assess whether alleged conduct is grave, the Prosecutor (and the Court) look at scale of the conduct, its nature, how the crimes were committed, and their impact.[13]
The role of prosecutorial discretion
Unfortunately, some situations present the Prosecutor with no shortage of suspected crimes that not only fall within the jurisdiction of the Court, but also tick off all the admissibility criteria. The Prosecutor therefore has to decide which cases to pursue in the exercise of their discretion. For this, they have developed an extensive Policy Paper on Case Selection and Prioritisation. This policy presents a whole range of factors that the Prosecutor takes into account in determining which, among many, possible cases to prioritise. Ultimately, it is difficult to apply the Policy in any formulaic way given the uniqueness of each potential case. This, however, misses the point that the Policy’s real value is in fostering dialogue between staff at the Prosecutor’s office and encouraging conscious and open debate about the objective merits of any given case.
The Palestine situation has been under investigation by the Prosecutor since 2021. Since then, the Prosecutor has been collecting evidence of alleged crimes committed on the territory of Palestine or by its nationals. It is irrelevant by which side to the conflict the crimes were allegedly committed. As a result of these investigations, the Prosecutor formed the view, on the basis of the evidence, that there were reasonable grounds to believe that the targets of the current application had committed crimes within the jurisdiction of the Court.[14] This view was reached some time prior to January of this year.
The Prosecutor did not, however, make an application for arrest warrants at that time despite being perfectly entitled to do so. Instead, he took the unique step of convening a panel of independent experts to review the proposed application. He did not need to ask a panel to assess the merits of his proposed application for arrest warrants, but he did it anyway. The fact that he did this is a clear demonstration that he wanted to ensure that the application was well-founded in both law and fact.
The panellists – Lord Justice Fulford (a former ICC judge who presided over the Court’s very first trial); Theodore Meron (the former ICTY President); Amal Clooney (Doughty Street Chambers); Danny Friedman KC (Matrix Chambers); Baroness Helena Kennedy LT KC (Director of the International Bar Association’s Human Rights Institute); Elizabeth Wilmshurst KC (a former Deputy Legal Advisor at the UK Foreign and Commonwealth Office); Marko Milanovic (Professor of the University of Reading); and Professor Sandesh Sivakumaran (Professor at the University of Cambridge) – were all well-suited to the task. They unanimously agreed that the Prosecutor’s application and supporting evidence did show reasonable grounds to believe that the proposed targets had committed crimes within the jurisdiction of the Court.[15] With the added confidence that this review brought, the Prosecutor filed the application for the arrest warrants, shortly thereafter.
What happens next?
No arrest warrants have yet been issued. This will only happen if the application is granted by a panel of three judges. The judges will apply the same test as the Prosecutor and the independent panel, as well as assess whether the arrest of the targets is necessary to ensure their appearance at trial; prevent them from obstructing or endangering the investigation or proceedings; or prevent them from continuing to commit a crime within the Court’s jurisdiction. If the arrest warrants are issued, all state parties – including Australia – have agreed to take steps to execute the arrest warrants. They agreed to this when they created and signed the Rome Statute.
The ICC has, historically, faced difficulties in bringing suspects before the Court. This is due to two main issues. The first is that suspects are typically located in the same states that are unwilling or unable to genuinely prosecute them. The second is that, when suspects do travel abroad to states that do have the capacity to arrest them, some of these states have been hesitant to do so. For example, when Sudanese president Omar Al Bashir, who had (and still has) an active arrest warrant for genocide, travelled to South Africa in 2015, South Africa decided not to arrest him because of questions about whether he enjoyed immunity from its domestic jurisdiction as a head of state. The ICC later made it clear that he did not (a finding which was also reached by South Africa’s Supreme Court of Appeal).[16]
Omar Al Bashir is just one of the individuals over whom the ICC has not obtained custody. Vladimir Putin, Joseph Kony, Saif Gaddafi, and Maria Alekseyevna Lvova-Belova are others. They may be arrested. This may take a long time. It took almost 13 years for Radovan Karadžić to be arrested on charges of genocide before the ICTY. It took 21 years for Fulgence Kayishema to be arrested on charges of genocide before the ICTR.
It is also possible they will never be arrested. But this does not mean that the ICC is ineffective. The power of the Court does not rest on its ability to take custody over individuals and try them.
The actions of the Prosecutor and the Court have important communicative functions.[17] They indicate to the broader community procedural and moral norms. They promote discussion, debate, and reflection about what we, as a community, consider to be appropriate conduct. In this sense, the Court’s ability to fulfil its mandate of preventing the future occurrence of grave international crimes is independent of whether states fulfil their obligations. At least the Court is fulfilling its own.
[1] PhD, LLM (Adv), LLB (Hons), BIR, GDLP. Cale Davis is a Lecturer in International Criminal Law at The Hague University of Applied Sciences. He received his PhD from Leiden University in The Netherlands on the topic of prosecutorial discretion in international criminal justice. He was previously a Prosecutor and Judge’s Associate in the Northern Territory.
[2] Sarah Basford Canales and Paul Karp, ‘Australia respects ICC’s independence after Netanyahu arrest warrant request, government says’ The Guardian (online), 21 May 2024 <https://www.theguardian.com/australia-news/article/2024/may/21/australia-respects-iccs-independence-following-netanyahu-arrest-warrant-request-government-says>.
[3] Liana Walker and Kaitlin Easton, ‘ICC prosecutors are seeking warrants for Benjamin Netanyahu and Hamas Leaders, here’s what happens next’ ABC (online), 21 May 2024 <https://www.abc.net.au/news/2024-05-21/icc-arrest-warrants-israel-hamas-what-happens-next/103872566>.
[4] The International Court of Justice has no criminal jurisdiction whatsoever. It has only two roles: adjudicating disputes between states about the interpretation and application of international law; and providing advisory opinions on legal questions submitted by the UN General Assembly or Security Council, or other organs of the UN (or its specialised agencies) if the question arises within the scope of their activities.
[5] Kevin Heller, an international criminal law scholar and former Hollywood scriptwriter, called the show a “fiasco” and “unmitigated disaster” that was “wrong in a way that can only harm the ICC”: Kevin Heller, ‘The problem with “Crossing Lines”’ on OpinioJuris (24 June 2013) <http://opiniojuris.org/2013/06/24/the-problem-with-crossing-lines/>. Crossing Lines is available for viewing on SBS On Demand, though strictly for entertainment purposes only.
[6] ‘Tripartite dinner meeting, 8:30 p.m. (Document 368)’ in William Franklin and William Gerber (eds), Foreign Relations of the United States: Diplomatic Papers, The Conferences at Cairo and Tehran, 1943 (United States Government Printing Office, 1st ed, 1961) 553, 554.
[7] Diary of Guy Liddell, Deputy Director General of the Security Service, June to November 1945 (UK National Archives Call Number KV 4/466) <https://discovery.nationalarchives.gov.uk/details/r/C13200344>.
[8] Charter of the International Military Tribunal, available in Trial of the Major War Criminals before The International Military Tribunal: Official Documents (The International Military Tribunal, 1st ed, 1947) vol 1, 10.
[9] The report of the International Military Tribunal is contained in the ‘Blue Series’: <https://tinyurl.com/tv348239>. The reports of the US trials conducted under Control Council Law No 10 are contained in the ‘Green Series’: <https://tinyurl.com/4jyyrwsk>.
[10] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’) <https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf>.
[11] Rome Statute, Preamble.
[12] Rome Statute, article 17(1)(a).
[13] See Regulations of the Office of the Prosecutor, r 29(2).
[14] This is the test contained in the Rome Statute, article 58(1)(a).
[15] Report of the Panel of Experts in International Law (20 May 2024) <https://www.icc-cpi.int/sites/default/files/2024-05/240520-panel-report-eng.pdf>, 8.
[16] The Minister of Justice and Constitutional Development and Ors v The South African Litigation Centre (867/15)[2016] SASCA 17.
[17] See, generally, Carsten Stahn, Justice as Message: Expressivist foundations of international criminal justice (Oxford University Press, 1st ed, 2020).