by Patrick Barasa, Nkumba University
This is a response to Mr. Lutakome Imran Kigongo’s article published on July 1, 2024, in the Nkumba University News, in which he generally concludes that the International Criminal Court (ICC) lacks jurisdiction over the Prime Minister of Israel. The article by Mr. Lutakome, although generally instructive, is frought with some factual errors that need to be corrected, which is why it behoves a response.
The article was written on the heels of the bloody conflict between Israel and the Palestinian armed group, Hamas, which ensued after the militants’ October 7, 2023, incursion into Southern Israel that resulted in the brutal massacre of some 1,200 civilians and the abduction of 250 others.
In response to the attack, Israel declared war on Hamas in Gaza to achieve three goals: to eliminate Hamas, bring back hostages, and ensure that Gaza will never be a threat to Israel’s security again. Israel’s defensive war on Hamas has, however, been prosecuted in a manner so brutal that it has placed Israel’s political and military leaders in the crosshairs of the ICC. In a CNN interview on May 20, 2024, Karim Khan, the Chief Prosecutor of the Court, revealed that his office had requested the Court for arrest warrants against the Israeli Primier Benjamin Netanyahu and his Defence Minister Yoav Gallant, and two other Hamas Commanders.
Mr. Lutakome, thus, second-guesses the ICC chief prosecutor’s wisdom to apply for arrest warrants against Netanyahu (and Gallant), given that Israel is not a state party to the Rome Statute, and attempts to interrogate whether the ICC even has jurisdiction over Netanyahu (and Gallant). He concludes that the ICC does not, and infers that in the circumstances, the Court can only assert jurisdiction over Netanyahu and Yoav Gallant following a referral to it by the UN Security Council, which he doubts is even possible given that the Security Council is a political body driven not by legal imperatives but by political interests. His skepticism of a UN Security Council’s referral is valid. The US will certainly veto any such resolution against Israel’s leaders.
While Mr. Lutakome is right that, as a general rule, the ICC has no jurisdiction over states not party to the Rome Statute, there is an important exception he failed to consider: a state can fall under the compulsory jurisdiction of the Court if crimes are committed on the territory of a state party, even if the state that commits crimes may not be a state party to the Rome Statute.
Gaza, which has suffered under the Israel Defence Forces’ ferocity, is part of the Palestinian territories. Palestine acceded to the Rome Statute in 2015, which makes Israel’s military actions on any territory of Palestine that offend the Rome Statute fall directly under the jurisdiction of the ICC. This was the basis for Mr. Khan’s decision to apply for arrest warrants against the Israeli leaders.
The only question that could arise from the above is in regards to the statehood of Palestine, which, based on the Montevideo Convention’s criteria, is not a state proper. Palestine exercises no sovereignty over vast swathes of territories that are recognised as Palestinian territories. East Jerusalem, forexample, and parts of the West Bank are under the effective control of Israel. Therefore, it is not a sovereign state within the meaning of the Montevideo Convention on the rights and duties of states. As an entity that is not a state, Palestine lacks the capacity to be part of international treaties, including the Rome Statute.
Nonetheless, the question of the statehood of Palestine has been a subject of debate for some time now. Palestine is recognised as a UN non-member state, but nonetheless a state on the path to UN membership. Palestine was also accepted into the ICC family as a state.
By and large, Palestine is internationally accepted as a state by a vast majority of the international community. In the ICC’s own decision, the court ruled that it has jurisdiction in Palestine by virtue of the fact that it went through the processes of treaty accession as a state and became a fully-fledged state party. A panel of experts in international law has also given its opinion on the matter, affirming that the ICC has jurisdiction in relation to crimes committed on the territory of Palestine, including Gaza, and that the Court has jurisdiction over Israeli, Palestinian or other nationals who committed crimes in Gaza or the West Bank.
So, yes, the Prosecutor of the ICC can prosecute PM Netanyahu and Yoav Gallant, although Israel is not a state party to the Rome Statute. It will not need a referral by the UN Security Council. Mr. Lutakome, clearly got it wrong in his article. He also made counterfactual statements, including that Israel’s war on Hamas was waged in commission of the crime of aggression. Mr. Lutakome failed to distinguish between a war of aggression, which produces the crime of aggression, and a war of self-defence, which does not. Israel’s war in Gaza is a war of self-defence, not a war of aggression. The ICC’s prosecutor himself does not accuse Netanyahu and Yoav Gallant of committing the crime of aggression in Gaza, but of war crimes and crimes against humanity.
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