Editorial #37: All Are Equal, but Some Are More Equal than Others

A notable milestone in the annals of international criminal law is the anniversary of the Rome Statute, adopted on 17 July 1998, which constituted the most significant legal institution in the field, the International Criminal Court (ICC or Court). Following the adoption of the Kampala Declaration by the States parties to the Rome Statute, the latter resolved to henceforth celebrate 17 July as the Day of International Criminal Justice.

In a striking display of ambition, the Kampala Declaration not only designated 17 July as a day of celebration but also initiated pivotal amendments to the Rome Statute, including the crime of aggression and specific elements of crime to Article 8. These amendments effectively broadened the ICC’s jurisdiction, underscoring its vital role in ensuring that the most egregious crimes of concern to the international community are not left unpunished.

Call for Celebration?

To mark the International Day of Criminal Justice on 17 July 2024, ICC Prosecutor Karim Khan made a statement in which he set forth that:

‘The mission of my Office and the Court is to vindicate the promise of international humanitarian law that all lives have equal value, and that all those subjected to violations have the right to justice.’

I am prompted to reflect on whether the current circumstances warrant a sense of celebration. To do so, I will consider, the extent to which the ICC has been successful in meeting its objectives as an impartial and independent body of international criminal law.

Owing to the fact that the Office of the Prosecutor is responsible for receiving referrals and any substantiated information on crimes within the ICC’s jurisdiction, examining them, conducting investigations, and initiating prosecutions before the Court (cf. Article 42(1) of the Rome Statute), I will focus on whether the Office of the Prosecutor has exercised its proprio motu discretionary powers with impartiality and independence with regard to its handling of the Gaza Strip situation.

Principles of Conduct Governing the Office of the Prosecutor

Pursuant to Article 42 paragraph 5 and 7 of the Rome Statute, the Prosecutor ‘shall [not] engage in any activity which is likely […] to affect confidence in [their] independence’ and ‘shall [not] participate in any matter in which their impartiality might reasonably be doubted on any ground’. Paragraph 30(b) of the Code of Conduct for the Office of the Prosecutor, which further specifies this provision, obligates the Office of the Prosecutor to refrain ‘from expressing an opinion that could, objectively, adversely affect the required impartiality’.

As an international civil servant, the ICC Prosecutor is also bound by contract to adhere to the ICSC Standards of Conduct for the International Civil Service, which, in paragraph 14  call for ‘constant sensitivity as to how words and actions may look to others. It requires avoidance of any expressions that could be interpreted as biased or intolerant.’

Independence & Impartiality of the ICC Prosecutor?

On 29 October 2023, the ICC Prosecutor conducted an official visit to the Rafah Border Crossing between Egypt and the Gaza Strip. During this visit, he delivered a statement on the current situation in the State of Palestine and Israel, saying that:

‘And one can’t watch videos of innocent Israelis being hunted down on a Saturday morning at a party and not pause to think for a moment at the hatred and the cruelty that underpinned those attacks. These acts that we saw on the 7th of October are not acts that accord with our humanity.

Palestinians who want no part of this conflict are caught up in hostilities. And too many are dying and too many are being injured. […]

The fact that innocent civilians are trapped under the weight of a war they cannot escape and which is not their fault is not tenable. […]

Israel has a professional and well-trained military. They have, I know, military advocate generals and a system that is intended to ensure their compliance with international humanitarian law.’ (Emphasis added)

It is noteworthy that ICC Prosecutor Karim Khan characterised the situation in Gaza as one in which civilians have become ‘caught up in hostilities’ and ‘trapped under the weight of a war’. Considering this characterisation and the subsequent description of the Israeli military as ‘professional and well-trained’ and committed to ensuring ‘their compliance with international humanitarian law’, his overall assessment seemed to be that the Israeli military’s conduct of hostilities has respected the core principles of international humanitarian law (IHL).

Such an assessment would, however, be at odds with the findings of the preliminary examination presented on 20 December 2019. Indeed, the preliminary examination concluded that there was a ‘reasonable basis to believe that, in the context of the 2014 hostilities in Gaza, members of the Israel Defense Forces committed the war crimes’ [cf. p. 1 para. 4]. I am not merely astonished by the stark contrast between the Prosecutor’s evaluation and the findings of the preliminary examination but also by the multitude of warnings that had been issued by various UN bodies, experts, and scholars by 3 December 2023, all of which concluded that Israel’s military assault on the Palestinian population of Gaza blatantly contravened IHL.

Following the conclusion of his visit to Israel and the State of Palestine, ICC Prosecutor Karim Khan issued a further statement on 3 December 2023, in which he highlighted that:

‘My visit to Israel was conducted at the request of family members and friends of Israeli citizens who were either killed or taken hostage by Hamas and other armed Palestinian groups on 7 October 2023. […]

I called for the immediate and unconditional release of all hostages taken by Hamas and other terror organisations. There can be no justification for the holding of any hostages, and in particular the egregious breach of fundamental principles of humanity through the taking and continued holding of children. […]

I also spoke with the families of Palestinian victims. I was grateful to hear such personal accounts of their experiences in Gaza and the West Bank.’ (Emphasis added)

In both instances, the statements in question employ a distinct set of linguistic conventions that are emblematic of a discernible proclivity on the part of the Prosecutor. In his references to Israeli victims, he has repeatedly acknowledged that their deaths were a result of the killings perpetrated by Hamas. In contrast, when discussing Palestinian victims, he has eschewed the term ‘killing’ and instead employed a passivising rhetoric, portraying them as mere casualties devoid of any corresponding crime or criminality.

In light of the aforementioned observations, it seems reasonable to express substantial reservations as to whether the ICC Prosecutor can be said to have respected his obligation to demonstrate due consideration for the potentially sensitive nature of how words and actions may be perceived by others. This lack of consideration raises serious concerns about a breach of the principle of impartiality, as an open letter signed by 269 international legal academics concludes.

Applications for the Arrest Warrants

On 20 May 2024, the ICC Prosecutor filed an application with the Court for the issuance of arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Israeli Defence Minister Yoav Gallant. The application was filed on the strength of reasonable grounds for believing that both individuals bear criminal responsibility on account of war crimes and crimes against humanity. It is the first time that the Office of the Prosecutor has applied for the arrest of political leaders of a State considered to be a Western ally. However, this was not the end of the Prosecutor’s course of action, as he also petitioned for the issuance of arrest warrants against three senior leaders of Hamas.

According to Abdelghany Sayed, the ICC Prosecutor has deviated from the established sequenced approach of prioritising cases according to their gravity. Instead, he issued arrest warrants for both Palestinian and Israeli leaders, indicating that the cases against both sets of leaders were of equal gravity, despite quantitative and qualitative assessments indicating otherwise. This strategy has been characterised by Abdelghany Sayed as ‘bothsidest approach’, who concludes that:

‘The Office’s bothsidesist approach is indefensible in view of the comparatively more intense, widespread and grave crimes of Israeli officials, were they to be examined geographically, temporally, quantitatively and qualitatively. Of course, the conduct of members of Palestinian armed groups has inflicted harm on hundreds of Israeli victims (scale), including the wilful killing of Israeli civilians (nature), entailed in certain instances particular cruelty (manner of commission) and resulted in terrorizing the community (impact). However, to proceed horizontally against “both sides”, here is what the Office has chosen to ignore: On the “scale” factor, the Office has ignored that everyone today in Gaza, who is not already a “direct victim,” is indeed an “indirect victim.” These are two million people.’

Similarly, Western States [cf. for instance USA, Germany, Austria, and the Czech Republic] were vehement in their opposition to the Prosecutor’s decision to apply for arrest warrants against members of the Israeli government due to what they view as an erroneous assumption of equivalence between Hamas and the Israeli leadership. These statements are, however, deflective in nature, as they shift the focus away from the actions of the Israeli leadership. The question of criminal responsibility is not contingent on whether the alleged perpetrators are political leaders of a State that has been democratically legitimised. Rather, it is the actions of the alleged perpetrators that are of significance. In this respect, the sequenced approach establishes precise parameters that enable the assessment of these actions, with a view to determining which individuals ought to be prosecuted. One is left to speculate as to why the ICC Prosecutor did not pursue this approach, which would have been a logical course of action.

Furthermore, in examining the Prosecutor’s statement announcing the applications for arrest warrants, it is evident that he has made an effort to contextualise the experiences of the Israeli victims of the attacks of 7 October 2023, emphasising the profound and unimaginable suffering they have endured:

‘I saw the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today. Speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness.’

Conversely, this approach to emphasising the humanity of the Israeli victims is not reflected in the way he has engaged with the Palestinian victims, with his discourse on the matter remaining confined to a purely legal framework.

What message is the ICC Prosecutor sending to Palestinians by departing from established policy and practice without giving any reason? What message is he transmitting to the Palestinians by failing to acknowledge their humanity and the suffering they endure, in a manner similar to how he attested to the humanity and suffering of the Israelis? What message are Western States conveying to Palestinians by maintaining unwavering and unequivocal support for Israel despite its flagrant violations of the fundamental principles of IHL and by failing to acknowledge not only the predicament of the Palestinians but also the underlying causes thereof?

Flawed Body Operating in an Intrinsically Flawed System?

In light of Anthony Anghie’s analysis of the imperialist and colonial origins of international law, it is evident that the third world approach to international law (TWAIL) remains as pertinent as ever and has significant implications for the realm of international criminal law. Pursuant to TWAIL, the development of contemporary international criminal justice appears to have been shaped by the unavoidable colonial roots that underpin today’s international legal order. Accordingly, it emerges that despite its comprehensive objectives and scope of jurisdiction, the ICC is inherently constrained to perpetuate prevailing imbalances. In this respect, John Reynolds and Sujith Xavier correctly observe that:

‘There is a drive to prosecute some of those responsible for some atrocities, but certainly no practical push towards geopolitical egalitarianism in who or what is prosecuted. This underlying contradiction informs the very nature of each criminal institution as much as it shapes the relations amongst them. Highly contested decisions taken by these institutions exemplify the challenges of developing any kind of truly ‘international’ criminal law.’ (Emphasis added)

Utilising these findings to scrutinise the Prosecutor’s decision to diverge from the established sequenced approach for no discernible rationale, reveals such a highly contentious decision. It exemplifies the pervasive flaw in international criminal law, namely its inability to transcend the constraints of global power politics and demonstrate its impartiality. Instead, it remains a hegemonic instrument, reflecting its inherent biases and selective application of justice. The intrinsic flaw in the system of international criminal law, is then further exacerbated by the flawed operation of the ICC and the Office of the Prosecutor.

Conclusion

It is beyond the capacity of language to adequately describe the atrocities occurring in Gaza. On a nearly-hourly basis, we are presented with accounts of victims and survivors that are profoundly distressing, as well as images that convey the sheer extent of the suffering endured. While the Palestinian question is a significant aspect of the situation in Gaza, it is also representative of a pervasive issue embedded within the very framework of international law. In a blog post published on Voelkerrechtsblog, written by Adrian Kreutz, the Gaza Strip is conceptualised as ‘a distinct laboratory for the world’s moral and political consciousness – a stage where the global political mind plays out its subconscious desires’. Subsequent to the presentation of this conceptualisation, the author offers an optimistic conclusion, stating that:

‘This time, it seems as if many of us might desire truth over power, accountability over impunity, civilization over its discontents.’ (Emphasis added)

In light of the prevailing circumstances, I am uncertain as to whether I can maintain such an optimistic and hopeful outlook, particularly in view of my personal experience as both a Palestinian and a German at the intersection of these two ostensibly irreconcilable identities.

As a PhD candidate and early-career researcher in the field of international law, I felt it was my responsibility to address in a constructive manner the unbearable situation that had arisen after 7 October 2023. It was not without considerable difficulty, however, that I was able to pursue my research in a climate that was everything but conducive to the free expression of ideas. The preceding months since 7 October 2023 have been marked by a considerable degree of difficulty, as numerous scholars and researchers of colour in international legal academia, particularly those of Palestinian descent, have confronted an unprecedented level of censorship. It appears that this may have been directed towards the objective of silencing their voices and erasing the realities of their lived experiences as persons of colour, thereby undermining their ability to contribute their distinct perspectives to international legal discourse.

On multiple occasions, I have been cautioned against publishing any work on the topic of Palestine, given my own Palestinian identity and the perceived conflict between my personal and academic perspectives. Yet, such warnings are predicated not only on the overly simplistic premise that the law is inherently neutral and objective, but also on the assumption that it is a monolithic entity, unaffected by the nuances of historicism. In fact, such assumptions fail to acknowledge that the law is merely a construct of our society, designed to govern our lives in a manner that facilitates the coexistence between individuals.

If we accept that the law is a construct of society and that all individuals are equally deserving of a voice in shaping the society in which they live, we must not only question why certain perspectives are so conspicuously disregarded but also why there is such a discrepancy between the voices that are heard and those that are not. The absence of consideration for certain viewpoints and the variability in their treatment may be attributed to the objective of preserving the law as an instrument of oppression, particularly in light of its imperial and colonial history, with the aim of disempowering those who bear the brunt of marginalisation.

The preceding observations have been demonstrated to be accurate with respect to international criminal law and its institutional framework. These circumstances give rise to considerable perplexity and concern with regard to the perception of 17 July 2024 by some as a moment for celebration and commemoration with respect to international criminal justice. At the present time, July 17 has left me with a profound sense of unease and apprehension regarding the legitimacy and credibility – not only of the ICC and the Office of the Prosecutor – but of international criminal law as whole.

It should be noted that the views expressed in this editorial do not necessarily reflect the opinion of the blog and its members. They are presented as a personal contribution to the ongoing debate.