Every phrase of every sentence of a statement of the International Criminal Court’s Prosecutor summarising his allegations against Netanyahu and Gallant is untrue, according to “observations” filed with the Court by prominent NGOs.
Allegations of starvation and famine
The Prosecutor is asking the International Criminal Court (ICC) to order the arrest of Israeli Prime Minister, Benjamin Netanyahu, and Defence Minister, Yoav Gallant, on the ground that Israel has used starvation of Palestinian civilians as a method of warfare.
He claims that under their leadership Israel imposed a “total siege over Gaza that involved completely closing the three crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods”.
However, a group of NGOs – UK Lawyers for Israel (UKLFI), International Legal Forum (ILF), Simon Wiesenthal Center (SWC), Bnai Brith UK (BBUK) and the Jerusalemites Initiative (JI) – have provided detailed information about the opening of the crossings, showing that the Prosecutor’s claim is simply not true.
They also point out that the Rafah crossing is between the Gaza Strip and Egypt, not Israel, so Israel can’t open it if Egypt insists on closing it, without going to war with Egypt.
The NGOs also dispute a series of other allegations by the Prosecutor, including a claim that famine was present in some areas of Gaza and imminent in others. The NGOs believe this claim is based on earlier reports that omitted to count a large part of the food and water supplies in Gaza and have since been officially classed as “implausible”.
The NGOs add that a report by a “panel of experts in international law”, including Amal Clooney, that agreed with the Prosecutor, is based on the same inaccurate material provided by the Prosecutor’s office.
The NGOs point out that if the Court proceeds on the basis of the false information, it would jeopardise the liberty of not only Netanyahu and Gallant, but also other Israelis, against whom arrest warrants could be issued secretly. This would restrict their ability to travel to many countries without fear of arrest.
The NGOs say that it would be a “disgraceful dereliction of duty” if the Court and the Prosecutor ignore the extensive information they have provided and the evidence they have cited. They consider that it would “call into question the integrity of the Court, its processes and its Prosecutor.”
Jurisdiction and Complementarity
UKLFI, ILF, BBUK and JI are also disputing the ICC’s jurisdiction and say that the Prosecutor is violating the foundational principle of complementarity, according to which the ICC will only intervene if national legal systems cannot or will not investigate alleged crimes.
These NGOs point out that Israel has a strong legal system with a track record of holding officials at the highest levels accountable for serious crimes. Israel’s independent Military Advocate General has already initiated 74 criminal investigations of alleged wrongdoing relating to military conduct since 7 October.
Instead of engaging with relevant officials in Israel so they could investigate his allegations, the Prosecutor abruptly cancelled a planned visit to Israel and announced that he was filing applications for arrest warrants at the ICC.
Other submissions
Following the Prosecutor’s announcement that he was seeking warrants for the arrest of Netanyahu and Gallant, the previous Conservative UK government obtained permission from the ICC to make further observations to the Court, saying that it wished to discuss the effect of the Oslo Accords on the Court’s jurisdiction.
However, the Conservative government was replaced by the current Labour government before these observations could be filed, and the new government has decided not to make any submission.
In the meanwhile, numerous NGOs and individuals have obtained permission to make further observations to the ICC. Most of these other submissions are on jurisdiction and/or complementarity, but the High Level Military Group has also made an important submission controverting allegations made by the Prosecutor.
Jonathan Turner, Chief Executive of UK Lawyers for Israel said
“If the International Criminal Court proceeds without properly addressing the points we have made, it will show that it is a successor to the mediaeval disputations and the Spanish Inquisition. It will mark a new stage in the age-old persecution of Jewish people based on false information.
We are also disappointed that the new British government has declined to assist the Court to reach a correct conclusion on the issue of jurisdiction, despite the Court’s invitation to do so. A decision that the Court has jurisdiction would be flat contrary to the Oslo II Accord and would further undermine prospects for peace in the Middle East.”
Arsen Ostrovsky, Chief Executive of International Legal Forum said
“The ICC Prosecutor’s decision to seek arrest warrants against the Prime Minister and Defense Minister of Israel is a modern-day antisemitic blood libel that violates every norm of international law. It not only entirely lacks substance, but also underscores the court’s blatant lack of jurisdiction in the first instance. If the ICC wishes to maintain any shred of dignity, it will dismiss these legally baseless and mendacious proceedings.”
See attached:
Annex to Request for Leave to Make Observations on Jurisdiction
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