On 20 May 2024, the International Criminal Court’s Prosecutor Karim Khan announced that he would be applying for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. His statement is here.
There are significant problems with his accusations, judicial over reach and circumvention of process. This factsheet will help explain what these are.
The first part discusses problems in jurisdiction, process and the dangerous precedent the Prosecutor is creating. After that, is a summary of some of the flaws in the Prosecutor’s allegations, and a longer discussion about the provision of aid into Gaza – which is at the core of the Prosecutor’s allegations.
Contents
Jurisdiction. The ICC only has jurisdiction over members that are states. Israel is not a member. ‘Palestine’ joined the ICC but it is manifestly not a state. This was also Australia’s position when it made a submission to the ICC in a 2020 submission to the ICC. In that submission, Australia wrote,
Australia’s position is that the jurisdictional preconditions under Article 12 of the Rome Statute are not met… Australia does not recognise the ‘State of Palestine’. As such, Australia does not recognise the right of the Palestinians to accede to the Rome Statute… In addition, UN General Assembly Resolution 67/19 (2012) does not separately indicate that the ‘State of Palestine’ has the status of a State. The Secretary-General’s decision to accept an instrument of access is an administrative act that does not confer a particular status, including statehood.
That was submitted under the Morrison Government. The Albanese Government has indicated it is willing to recognise Palestine before final status negotiations with Israel are concluded. However, it has definitively stated that Australia does not yet recognise Palestine as a state, and that the recent UN General Assembly resolution, which granted the ‘State of Palestine’ additional rights in the UN, does not confer statehood. As such, in regards to ICC jurisdiction, the Albanese Government’s position on Palestinian statehood is the same as the Morrison Government’s and, as such, Australia should maintain its rejection of ICC jurisdiction in this matter. This should include a refusal to administer arrest warrants in this case if issued.
Complementarity. The ICC is the ‘court of last resort’. It’s constitution (known as the Rome Statute) specifically says in Article 17 that only if a country’s judicial system is unwilling or unable to credibly investigate allegations of war crimes will the ICC step in. Notwithstanding the serious flaws in the ICC’s allegations (see below), the ICC has not yet allowed the Israeli judicial system to investigate the matter. This is particularly odd given that the ICC Prosecutor has previously said that “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.” The Israeli High Court is currently investigating the levels of humanitarian aid entering Gaza; the issue of aid is a key plank in the ICC allegations against Israel. By moving now, the ICC appears to be breaching its own constitution.
That the ICC is willing to appear to breach the principle of complementarity should profoundly concern Australia. The ICC must not be allowed to skip due process; its credibility as an impartial actor and non-interventionist court of last resort depends on this.
Precedent. Benjamin Netanyahu and Yoav Gallant are democratically elected high officials in a rule-of-law Western democracy whose military abides by the laws of armed conflict. Further, in this conflict, Israel has allowed significant humanitarian aid into Gaza and has gone well out of its way to avoid civilian casualties. (That the ratio of civilian to combatant deaths in this war is about 1:1, whereas the global warfare average is 9:1 is testament to this.) Without doubt, the humanitarian situation in Gaza is troubling and more can and arguably should have been done. However, that the ICC would a) seek to drag a Western country before the court when it is abiding by the laws of armed conflict and b) be willing to skip the principle of complementarity will be of great concern to all Western militaries, because this precedent – if arrest warrants are indeed issued – will create a dangerous precedent that will impact the ability of Western militaries to operate.
The Australian Government should strongly protest the Prosecutor’s announcement, not out of any fondness or concern for Israel, but to avoid a serious impact to Australian national interests.
Optics. Creating a false moral equivalence between Hamas and Israel, as the ICC Prosecutor did, is completely disingenuous. Further, Israel had agreed to cooperate with the ICC (despite not being a member) to show it how it makes decisions in wartime, and how it complies with the laws of armed conflict. The ICC Prosecutor’s staff were due to fly to Israel at the same time as he made his statement, but didn’t board the plane. It feels as if the Prosecutor has chosen to push for publicity over due process. This is especially the case given that the Prosecutor doesn’t usually announce an intention to apply for arrest warrants before actually doing so.
ICC bias? International organisations – especially those which are state-level international organisations like the UN and the ICC – often become highly and unfairly critical of Israel. This bias includes accepting untrue allegations about Israel and holding Israel to a different standard than other states. The ICC allowed itself to become politicised when it accepted ‘Palestine’s accession request, despite Palestine manifestly not being a state. It accepted this because the Assembly of State Parties voted in favour of doing so. But, just like the United Nations, there is always an automatic anti-Israel majority in this body. Decisions are not made with judicial processes and legal requirements being the highest priority, but diplomatic and domestic political considerations. It is a fundamental flaw of the court that, once the matter of Israel was raised, manifested into a problem with the court’s credibility.
Flaws in ICC Prosecutor’s arguments. There are many significant flaws in the ICC arguments. Here are some of them, followed by a wider discussion about the problems associated with delivery of aid, which is at the centre of the Prosecutor’s accusations.
Siege. The ICC Prosecutor claims that Israel imposed a siege over Gaza. However, one of Gaza’s borders is with Egypt, and Israel has never prevented aid from entering Gaza across this border. Indeed, Israel had no control over this border until May 2024. Further, Israel has allowed water, food and humanitarian aid to enter Gaza (a siege is the prevention of such goods!) Israel has facilitated the entry into Gaza of over 29,000 trucks of humanitarian aid. It has also facilitated air drops of international aid. It has facilitated the building of a pier to allow ships to directly supply aid to Gaza. Were Israel attempting to impose a siege on Gaza, it would not have allowed any of this.
It has been widely reported that in October 2023, Israeli Defence Minister said that Israel would impose a ‘complete siege’ on Gaza, in response to the 7 October Hamas attacks. He said (in Hebrew), “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.” These are troubling words, however it is worth remember three things. First, he said this in the immediate aftermath of the 7 October attacks, and he said it in a doorstop interview, not a planned statement. Second, the Hebrew for siege is matzor (מָצוֹר). Matzor can mean siege or blockade. Since 7 October, Israel has maintained a blockade of the Gaza Strip, in order to prevent military equipment entering the Strip. This is a) completely legal and b) substantial different from a siege. Third, Israel has allowed significant amounts of food, fuel and water into the Strip. This means that one should not rely on Gallant’s emotional words on 9 October as evidence of Israeli intentions.
Closing of three crossing points (Rafah, Kerem Shalom, Erez). The Prosecutor’s statement accused Israel of “completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods”. The Rafah crossing point is directly into Egypt, and Israel has not closed this. Indeed, Israeli troops did not go near Rafah until May 2024. The Kerem Shalom crossing was closed for a couple of weeks only. Israel has long maintained that it sends more aid through that crossing than the UN is able to deliver inside Gaza. Hamas combatants destroyed Erez crossing during the 7 October attacks. Further, the Erez crossing was for human traffic, not goods, and thus was inappropriate for the delivery of humanitarian aid. Israel has repaired the crossing and renovated it to allow for the delivery of trucks. It has also created a new crossing midway up the eastern border of Gaza.
Cutting of water pipelines. The Prosecutor also said, “The siege also included cutting off cross-border water pipelines from Israel to Gaza – Gazans’ principal source of clean water – for a prolonged period beginning 9 October 2023”. Before 7 October, Israeli water pipes into Gaza accounted for nine per cent of Gaza’s water needs. Gaza has three desalination plants. On 7 October, Hamas combatants destroyed two of the three pipes that entered Gaza. Israel did initially close the one working pipe, but opened it back up a week later. After the other two were repaired, they were also re-opened. They have not been shut since.
Starvation as a tactic. Most of the Prosecutor’s accusations regarding Israel centre on the concept that Israel is using starvation as a weapon of war. To prove this, the Prosecutor would have to show that Israel was intentionally starving the people of Gaza. There is no doubt that there is significant food insecurity in Gaza. There are multiple reasons for this, all of which are directly or indirectly associated with the current war. However, Gazans are not starving.
Accusations of starvation or famine in Gaza come primarily from Hamas-aligned or otherwise anti-Israel NGOs with a history of significantly biased commentary. It is worth remembering that the UN had to recently decrease the number of Palestinians killed in the current war by 10,000 (including halving the number of women and children it had been claiming had been killed), in an admission that relying on Hamas-provided statistics had proven inaccurate. In March 2024, al-Jazeera, which is highly biased against Israel, reported that a total of 27 people have starved to death in Gaza.
The provision of aid in Gaza has been a key factor in media reporting in this war. Israel maintains that it allows more aid into Gaza than the UN and other agencies are capable of delivering. The UN and other aid agencies blame Israel. But Gazans primarily blame Hamas and the UN. In February 2024, Humanitarian Outcomes (which, according to its website, is a team of specialist consultants providing research and policy advice for humanitarian aid agencies and donor governments) polled 810 Gazans about the main challenges to receiving aid.
In survey responses (p. 16), 50 per cent reported that the aid was being distributed too far away, and 42 per cent that local officials (i.e. UN and Hamas) took or blocked the aid. Only 19 per cent reported that the military (i.e. Israel) took or blocked the aid.
In March 2024, the Palestinian Center for Policy and Survey Research conducted an opinion poll (the PCPSR has been conducting opinion polls every three months for two decades). It asked Gazans whether distribution of aid was discriminatory. Gazans said yes.
The Humanitarian Outcomes poll also included the ability of those polled to provide comments. Three hundred and sixty-nine chose to do so. Of these, “a plurality of commenters (110, 41 per cent) mentioned issues with diversion [of aid] and corruption interfering with the ethical distribution of aid. Large numbers spoke of authorities exercising favouritism and nepotism in determining who received aid, and aid being stolen for sale on the market. The below are some typical comments collected by the survey (p. 15).
Notwithstanding the many other complications involved in aid delivery, it is clear that Gazans primarily blame the UN and Hamas.
Is there enough aid going into Gaza?
This is clearly a subjective question, and arguably there is no measurement for ‘enough’. However, here is some contextualising information.
What is clear is that the aid going in is not getting to all the right people. Three-quarters of the Gazan population is gathered in southern Gaza, which is where most aid is entering. Although most of these are internally displaced, with the significant challenges that come with that, they are receiving aid. The main problem with aid distribution is with the people remaining in northern Gaza.
Cash grants (including through ATMs – which are still operating) have allowed people to buy food and other goods in markets without having to distribute aid to them.
It has been repeatedly reported that, before 7 October, ‘500 food trucks entered Gaza daily’. This is a furphy. Most of the 500 trucks entering Gaza daily contained commercial items and construction material. According to Israel, an average of 70 food trucks entered Gaza per day before 7 October (compared to an average of 140 per day since). According to the UN, an average of 200 trucks entering Gaza daily before 7 October contained food and aid. That said, before 7 October, much of Gaza’s food was grown in Gaza, whereas now Gazans are essentially totally dependent on food aid (though local farmers continue to grow (pp.17-18) produce and distribute it through aid agencies.
Why isn’t more aid going, and in faster?
The answer is complicated, because war is complicated.
Before aid goes into Gaza, Israel checks it to ensure that it doesn’t contain weapons or items that can be used by Hamas in its war effort. This is absolutely in line with the laws of armed conflict (also known as international humanitarian law), but the process takes time. That said, Israel has consistently claimed that it processes more aid that the UN can distribute in Gaza.
Once the aid enters Gaza, it needs to delivered. Israel has pointed to aid piling up on the Gaza side of the Egypt-Gaza border, because the UN can’t deliver it fast enough. The Israeli army claimed in late March that only 77 per cent of aid that entered Gaza had been distributed, and asked whether the rest had been stolen.
Delivering aid in active conflict zones is extremely difficult. Telecommunications breakdowns, restrictions on movement by military forces, bureaucratic deconfliction communications (between organisations, military liaisons, fighting units), not to mention deconfliction breakdowns, such as the tragic accidental killing of Australian humanitarian worker Zomi Frankcom all impact the delivery of aid.
Hamas combatants used to travel on the trucks, ostensibly to prevent them from being looted. However, Hamas would also loot the trucks. International humanitarian law explicitly allows Israel to prevent aid that will advantage the enemy or be diverted by the enemy.
Israel considers all Hamas operatives combatants, and so killed those who were riding on aid trucks. Thus, Hamas no longer ride on the trucks. While this limited the aid that Hamas could steal, it also meant that it was easier for criminal gangs and members of the public to loot the trucks, which they did.
Is it really dangerous for humanitarian workers in Gaza?
Humanitarian work in conflict zones is highly dangerous work. Humanitarian Outcomes reports that, between 2003 and 2022, 1272 humanitarian workers were killed in conflict zones.
While numerous humanitarian workers have been killed in Gaza during the current war, according to Humanitarian Outcomes (p. 14), the majority were off-duty (i.e. accidentally killed as civilians, not killed whilst on the job doing humanitarian work). Unfortunately, these are grouped together by those wishing to make Israel look bad (as opposed to presenting the situation as-is), and media report the grouped figure of over 220 aid workers killed. This artificially inflates the number and presents an inaccurate view of the conflict. In early April, Associated Press could only point to 30 aid workers that had been killed in the line of duty.
In short, while the humanitarian situation in Gaza is severe, this is an outcome of the war, and not a deliberate objective of Israel. The idea that the Israeli prime minister deliberately planned the mass starvation of Gazans – this is the accusation that the ICC Prosecutor has made – is outrageous.
