A Critical Study of ICC Prosecutor's Move on GAZA War

ICC Prosecutor Karim Khan's proposal to its judges seeking permission to prosecute Israeli leaders and Hamas commanders for crimes against the law of war has serious ramifications and calls deep scrutiny.

1. ICC PROSECUTOR’S MOVE   ON GAZA WAR

2. Presentation by  Maj G en Nilendra K umar

3. INTERNATIONAL CRIMINAL COURT This tribunal seated at The Hague, Netherland, is a permanent court for the crimes of genocide, crimes against humanity, war crimes & crime of aggression.

4. ICC'S JURISDICTION 1. Crimes against humanity. 2. Genocide. 3. War crimes. 4. Aggression.

5. ICC Rome statue , in its charter, provides for eighteen judges including a president, prosecutor and a registry. The prosecutor investigates and initiates criminal proceedings.

6. ICC MEMBERSHIP   124 countries not including US, Russia and China.

7. STATEMENT BY KARIM KHAN The statement made on 20th may 2024 concerns the ongoing G aza conflict.

8. GENESIS 7 Oct 2023 attack  1,170 deaths, mostly civilians  250 hostages, of whom  124 remain in Gaza and 37 admitted to be dead.

9. ISRAELI RETALIATION   1) Netanyahu has vowed to keep fighting Hamas in Gaza until they are defeated and all remaining hostages are released.  2) Killed 35,562 far in Gaza, mostly civilians as on 21 May 2024.

10. IMPACT ON CIVILIANS 2.4 million people in Gaza strip without access to clean water, medicine and fuel.

11. ISRAEL STRATEGY To conduct targeted raids on terrorist infrastructure in Eastern R afah which had shown dozens of funnel shafts 130 terrorists  were eliminated.  

12. UN ESTIMATE More than 8,12,000 Palestinians have fled R afah, near Egyptian border.

13. ACCUSED PERSONS 1. Israel * Prime Minister   Benjamin Netanyahu * Defence M inister   Yoav Gallant 2. Hamas leaders

14. HAMAS LEADERS 1. Ismail Haniyeh (Qatar based)  2. ⁠ Yahyam Sinwar,  ⁠ Gaza chief, 3. Mohammed Diab Ibrahim AL-MASRI

15. DEMAND OF PROSECUTOR  ICC Judges asked to grant warrant to arrest. 

16. CHARGES PERTAIN TO Crimes against humanity and war crimes.

17. OFFENCES 1. Willful killing. 2. ⁠Extermination and/or murder.  3. Starvation. 4. Widespread and systematic attack against Palestinian  civilian population.

18. NATURE OF CONFLICT  Israel and Palestine as IAC   Israel and Hamas as NIAC

19. ICC ARTICLES INVOKED   71 (b) Extermination.  71 (f) Torture.  71 (g) Rape & other acts of sexual violence.  71 (k) Other inhuman acts.  8 (2) (c) ( i ) Torture in captivity, cruel treatment. 8 (2) (c) (ii) Outrageous upon personal dignity in context of captivity . 8 (2)(c)(iii) Taking hostages . 8(2) (e) (vi) Rape and sexual violence in captivity.  

20. EVIDENCE BASED ON 1. Interview of victims and survivors from six major attack locations. 2. CCTV footage.  3. ⁠Authenticated audio, photo & video material.  4. S tatements by Hamas members including alleged perpetrators &  expert evidence. 5. Medical records.

21. TAKE NOTE  The prosecutor avoided indictment of Israeli military commanders but concentrated on top Israeli leaders who gave political directions.

22. Hamas Already designated as a terrorist organization by US and EU.

23. OFFENCE BY HAMAS Criminal responsibility for actions committed during the 7 th October 2023 attack. 

24. Applications filed by Prosecutor on 20 May 2024 Seeking warrant of arrest from Pre T rial C hamber I of the ICC.

25. ISRAELI COMMENT The step by the prosecutor is a reward for terrorism.

26. NOTE THE   REACTION OF THOSE ACCUSED Both Israeli and Hamas leaders.

27. ISRAELI VIEW  1. The step amounts to a historical disgrace. 2. The move has been rejected with disgust due to its comparison between democratic Israel with the mass murders by Hamas . 3. The effort is a n attempt to deny the Israel a  right to defend herself and ensure the release of hostages held in Gaza and therefore must be rejected explicitly.

28. COMPETENCE OR ENFORCEABILITY OF THE PROPOSAL ICC has no mechanism to enforce its warrants.

29. IMPLICATION OF GRANT OF WARRANT 124 member states of the ICC w ould be obliged to arrest the accused  p ersons , if they travel to them. 

30. PROSECUTOR’S ASSERTION  1. IHL is the foundational baseline for human conduct during armed conflicts. It applies to all individuals and equally across the situations, and 2. The lives of all human beings have equal value.

31. COMPLIMENTARITY LEGAL POSITION A deferral to national authorities is required only when they engage in independent and impartial judicial processes that do not shield suspects & are not a sham.

32. QUESTIONS  1. Has the ICC over-reached and   put its own future on the line? 2. ⁠Is Israel on the same level as a  terrorist organization? ⁠

33. US HARDLINGRS VIEW 1. ICC has no jurisdiction over Israel. 2. ICC’s decision is outrageous and it acted Precipitately . 3. ⁠Pressure be brought on the ICC judges not to grant the request of Prosecutor .

34. Donald Trump campaign asserts that US should now impose sanctions on ICC and its judges. 

35. JOE BIDEN EQUIVOCATES 1. The proposal would neutralize ICC indictment move a gainst Russian President Putin. 2. On the other hand, it would be counter to its advocacy for rules based international border. 

36. SOME IN TEL AVIV !   Many in Israel believe that deliberate use of starvation of civilians as a method of warfare could have been avoided .

37. WHAT NEXT? It is theoretically possible that ICC judges will refuse to issue warrants.

38. CONCLUSION 1. To retain its global legitimacy, ICC has to be seen to act against war crimes, whoever commits them and wherever they are committed . 2 . ⁠The court risks looking increasingly impotent and irrelevant. ICC'S TEST