Azra Hoosen | ah@radioislam.co.za
23 May 2024 | 19:30 CAT
4 min read

The International Criminal Court (ICC) chief prosecutor Karim Khan announced on Monday that he has applied for arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defence Minister Yoav Gallant, and Hamas leaders Yahya Sinwar, Mohamed Deif, and Ismail Haniyeh. They are suspected of committing war crimes and crimes against humanity.

Israel’s ongoing bombardment and ground invasion of the Gaza Strip has since claimed over 35,000 lives, primarily women and children, with many more feared dead beneath the rubble.

Dr. Atila Kisla, a renowned expert in international law and global justice, discusses the significance of these charges, the challenges faced by the ICC, and the broader implications in an interview with Radio Islam.

Kisla asserted that this is a significant step towards accountability in the Palestinian situation under the ICC’s jurisdiction. It demonstrates that international law, particularly the laws of war, applies to everyone, regardless of their position within the state. This sends a powerful message that all individuals will be held accountable for their actions.

Kisla believes that the State should focus on the substance of the announcement, not so much on the optics of the statement itself. “It is the right move by the prosecutor to mention both Israeli and Hamas parties in the same announcement as that shows that the ICC prosecutor is truly acting without fear and favour and is acting impartially and independently,” he said.

Speaking on whether it is an equal war, particularly given that Hamas is not as militarily advanced as the Israeli Defense Force, Kisla emphasised that for the ICC, what matters is where it has jurisdiction, and in this case, it does.

“The prosecutor looks at to what extent the individuals acted outside the laws of war and have committed crimes against humanity, the equipment or which position each individual is standing in the State is not of any relevance to the court.

Kisla emphasised that the ICC does have jurisdiction, which was confirmed by its pre-trial chamber in 2021. “It has jurisdiction over the state of Palestine, including Gaza, West Bank, and East Jerusalem. But the US is arguing that the ICC doesn’t have jurisdiction because there are already proceedings ongoing in Israel but the ICC prosecutor seems to think otherwise,” he said.

The panel concurred with Chief Prosecutor Karim Khan’s assessment that the ICC has jurisdiction over the case, given that Palestine is a state party under the ICC statute.

Speaking on political pressures, Kisla explained that both member and non-member states can support the ICC by providing relevant evidence. Additionally, states can demonstrate their political support for the court by utilizing the mechanism of state referrals.

“Where we are right now is that the pre-trial chamber will either grant or dismiss the application and the standard they are applying is called the ‘Reasonable grounds test’, meaning there must be reasonable grounds to believe that the individuals in question have committed the alleged crimes. That will be the baseline standard for the pre-trial chamber,” he said.

If the arrest warrants are issued, this will have implications for member states.
“When an individual is traveling to an ICC member state, the ICC will request that these states arrest and surrender that individual if he is in the territory of that member state. That limits the travel options of the individuals in question as we have seen in the case of Russian President, Vladimir Putin,” said Kisla.

Kisla suggested that it is crucial to build and hold pressure on Israel and its allies.
“Those countries that are submitting arms are potentially running the risk of being complicit in International crimes, additionally, it helps shape public opinion and the opinion held within the International community,” he added.

The panel noted that investigations into additional crimes are ongoing and “expected to lead to further applications in the future.”

A panel of three ICC judges will decide whether to issue arrest warrants for the Israeli and Hamas leaders, a process that typically takes two months. Some experts believe the warrants are likely to be granted due to the substantial work behind the prosecutor’s request and the relatively low legal threshold of needing “reasonable grounds to believe” the individuals are responsible for the alleged crimes.

LISTEN to the full interview with Muallimah Annisa Essack and Dr Atilla Kisla, here.