Israel has rejected the International Criminal Court’s chief prosecutor’s request for arrest warrants for its prime minister and defense minister over their conduct of the war in Gaza, in filings to the court made late last month that were reclassified as public on Friday.
The Israeli filings rejecting the warrants are based on technical grounds, not on the substance of the claims. They do not address the questions raised by the court’s chief prosecutor, Karim Khan, about whether the Israeli prime minister, Benjamin Netanyahu, and his defense minister, Yoav Gallant, may be guilty of war crimes and crimes against humanity for their prosecution of the war in Gaza.
Instead, the documents challenge the court’s jurisdiction, arguing that Mr. Khan failed to provide sufficient notice of the scope of his inquiry or to give Israel time to show that it is capable of independently investigating the same matters. Under the treaty setting up the International Criminal Court, which Israel is not a party to, a case could be inadmissible in the court if it is already being or will be investigated by a state with jurisdiction over it.
That means if Israel has the ability to conduct its own investigation into the actions underlying the accusations against Mr. Netanyahu and Mr. Gallant, the International Criminal Court in theory could give precedence to the country’s judicial system, allowing it the opportunity to address the claims.
In this case, Israel has argued that Mr. Khan did not provide enough information about what he was investigating, nor did he give Israel the chance to show it would inquire into the allegations itself.
“Despite having been forced into a bloody conflict that it did not want, Israel remains a democracy endowed with an independent judiciary and deeply committed to the rule of law,” the Israeli filing argued, adding that Israel “has the appropriate mechanisms” to ensure accountability for any alleged crimes.
In May, Mr. Khan sought arrest warrants for Mr. Netanyahu and Mr. Gallant, and Israel is hoping to thwart or delay the issuance of the warrants. Mr. Khan also sought warrants for three Hamas leaders who were responsible for the Oct. 7 Hamas-led attacks that set off the war in Gaza — Yahya Sinwar, Ismail Haniyeh and Muhammad Deif. Of these three, only Mr. Sinwar is believed to still be alive.
Among other technical arguments rejecting the international court’s jurisdiction, Israel is now asking the I.C.C. to delay the request for arrest warrants for two of its top leaders until Mr. Khan provides more details about the scope of his investigation. And it wants the chance to show the court that it will address the accusations internally.
“Israel has primary jurisdiction and is best placed to investigate allegations of the sort raised by the Prosecutor, given the access required to relevant evidence, information and persons,” the Israeli submission argued.
The I.C.C. does have jurisdiction to proceed when a state is unable or unwilling to investigate accusations, or if the state inquiry is conducted in bad faith to protect the accused. And each situation is assessed on a case-by-case basis, so an Israeli inquiry wouldn’t necessarily preclude an I.C.C. prosecution going forward even if the court decides to grant Israel’s initial requests.
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