Justice Update – All Amici Aboard Palestine Israel ICC

Sometimes as journalists, we have legal conundrums that we have to tackle. How do we do that? Well, we read and reread the documents, and then turn to the experts and ask the basic questions. A bit like this podcast really.

As we wait for the International Criminal Court judges of the pre-trial chamber (PTC) to confirm (or not) the arrest warrants against senior Israeli and senior Hamas leaders requested by prosecutor Karim Khan, some legal arguments are emerging.

More details on those arrest warrants are here in this podcast we did earlier on the alleged crimes committed by Israeli Prime Minister Benjamin Netanyahu and his defence minister Yoav Gallant in connection to the starvation of people in the Gaza Strip and three senior Hamas officials connected to the killings of 1200 Israeli citizens on October 7 and taking hostage several hundred.

We asked the ICC prosecutor’s special advisor to the prosecutor on war crimes, Kevin Jon Heller Professor of International Law and Security at the University of Copenhagen’s Centre for Military Studies what about recent arguments we’ve heard on complementarity – how we know when the ICC can or can’t prosecute a case because a state says ‘back off we are doing it’. Do we check the Rome Statute – the treaty that states parties negotiated in Rome back in 1998 – or refer to the latest OTP policy document on complementarity, launched a few months ago? And what do they say?

Also, you may have noticed a sudden decision by the judges in the PTC on the Palestine potential arrest warrants allowing the United Kingdom to file an amicus brief while they are deciding. An amicus brief is a ‘friend of the court’ filing or recommendation when there’s a legal issue.

In this case, the UK wants to argue that because the PLO signed up to the Oslo Accords setting up the Palestinian Authority, and because in those accords there’s an agreement that the PA has no legal authority over Israeli citizens, therefore, some scholars say, Palestine could not give the ICC authority to charge Israeli citizens. 

Some of this was all discussed (a bit) when the judges first had to rule on the precise territory of Palestine, back in 2021, when Fatou Bensouda was the prosecutor. Her advisor on crimes against humanity during that time was Leila Sadat, Professor of International Criminal Law at Washington University in St Louis Missouri, so we called her up for a chat on amici.

Other podcasts in which Kevin has appeared include an early one on whether the ICC would start to deal with cases where the state where much of the alleged crimes happened wasn’t a member – like Myanmar (not a member) and the expulsion of the Rohingya into Bangladesh (a member).

Another recent pod with Leila was our live show with the Hague Humanity Hub for 125 years of The Hague as the world’s capital for peaceful resolution of disputes via the law.

This podcast has been produced as part of a partnership with JusticeInfo.net, an independent website in French and English covering justice initiatives in countries dealing with serious violence. It is a media outlet of Fondation Hirondelle, based in Lausanne, Switzerland.