The Inadvertent Protagonist – Verfassungsblog

The International Court of Justice (ICJ), a UN body essentially responsible for resolving inter-state disputes, has been increasingly asked to consider matters with implications for individual criminal responsibility – a predominant concern of international criminal law. In some cases, the link is direct; for instance, in the last two years, the Genocide Convention has been invoked twice on behalf of Ukraine and Gaza. Although for the ICJ, its application is a question of State responsibility, it will give rise to questions of individual responsibility in other international and domestic fora. In other cases, the connection is not as direct, like in the  Advisory Opinion of 19 July 2024. Here we see potential consequences for the prosecution of international crimes arising even if the legal questions before the ICJ were not explicitly framed in terms of international crimes. Thus, in this post, we reflect on the ‘dialogue’¹⁾ between public international law and international criminal law through its judicial institutions, i.e. the ICJ, the International Criminal Court (ICC) and domestic criminal courts.

It is not the first time that the jurisprudence of the ICJ and international criminal tribunals ‘intersect’. A locus classicus is the ICJ Genocide judgment (Bosnia v. Serbia) with parallel proceedings before the International Criminal Tribunal for the former Yugoslavia (ICTY). In this judgment, the ICJ discussed, inter alia, the elements and structure of the crime of genocide and largely adopted the ICTY’s position (as posited in Krstic) on genocide in Srebrenica.²⁾ It will also not be the last time that we see an overlap, just think of the not unlikely case of the ICJ being requested to clarify the legal status of functional immunity exception for international crimes.

In the past, as pointed out by Claus Kreß, the ICJ broadly followed a ‘division of labour’ approach between itself and the international criminal tribunals. Arguably, in the Israel/Palestine Advisory Opinion, the ICJ follows the same approach as it restrains itself from discussing elements of crimes under international law or issues of attributing individual liability. However, there are some findings of the Court, in particular concerning the facts of the case and their legal assessment, which may indeed have indirect implications from an international criminal law perspective. We focus on two points that may give rise to a ‘dialogue’ between the ICJ and the ICC, or, more broadly, between two distinct branches of international law: Israel’s discriminatory legislation and measures against the Palestinian population, and its settlement policy in the Occupied Palestinian Territory (OPT).

Apartheid

In the questions posed to the ICJ by the UN General Assembly in January 2023, the Court was, inter alia, requested to consider the legal consequences of the discriminatory nature of legislations and measures adopted by Israel in the OPT. Taking into account Israel’s residence permit policy, restrictions on the movement of Palestinians in the OPT, and the demolition of Palestinian property, the Court found that these measures constituted systemic discrimination against Palestinians on the basis of, inter alia race, religion, or ethnic origin. The ICJ observed:

“Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD (1965 International Convention on the Elimination of All Forms of Racial Discrimination).” (para. 229)

Article 3 of CERD speaks of two particularly severe forms of racial discrimination: racial segregation and apartheid. The Court did not delve into the definition of apartheid and racial segregation, nor did it explicitly specify whether it considered Israel’s policy to be apartheid or racial segregation or both – presumably an outcome of the collective nature of the decision-making process of the.

This non-binding finding only deals with the framework of international human rights law and State responsibility and not with international criminal law (as emphasized by Judge Iwasawa in her separate opinion, paras 12-13). It was beyond the scope of this Advisory Opinion for the Court to give any findings on ‘apartheid as an international crime’ (for an analysis from an international criminal law perspective see, e.g., Ambos), which would be governed either by the 1974 International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) before the ICJ, or otherwise by the 1998 Rome Statute of the International Criminal Court (ICC Statute) before the ICC (with Israel not being a State party to both treaties). It is noteworthy, however, that Judge Brant in his declaration presents a definition of apartheid for the purposes of CERD which he takes from the Rome Statute and the Apartheid Convention, as indicative of State practice, engaging in a judicial dialogue across legal frameworks (para. 6 – 10). He notes:

“(A)s regards the definition contained in the Rome Statute, although this was developed in the context of individual criminal responsibility, I see no reason to conclude that apartheid should be defined differently in relation to the international responsibility of States.” (para. 9)

While the Advisory Opinion itself is silent on whether discriminatory policies satisfy the constitutive elements of apartheid, individual judges of the Court addressed this question in their separate opinions and arrived at contrasting conclusions. On the one hand, Judge Nolte expresses that the Court did not have sufficient information to establish the subjective element (the specific intent to establish and maintain an institutionalised regime of domination and oppression by one racial group over the other) on the part of Israel. In his view, the purpose of domination should be the ‘only reasonable inference’ from the conduct of Israel to satisfy the specific intent to constitute apartheid. In this case, he noted that Israel may also be motivated by security considerations and/or driven by the aim of asserting sovereignty over the West Bank (para 13).³⁾

On the other hand, the President of the Court, Judge Salam, based on the evidence adduced before the Court, was convinced that Israel’s actions and declarations demonstrate that it fully intends to continue the established regime of domination of the Palestinians (para 28-29). Also Judge Tladi, drawing parallels to apartheid policies in southern Africa and referring to ICTY case law,  specifically deals with the question of intent raised by Judge Nolte in his declaration. He explains:

“As the International Criminal Tribunal for the former Yugoslavia observed in the context of genocide, intention and purpose can be “inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group” (Prosecutor v. Jelisić, Case No. IT-95-10-A, Appeals Chamber, 5 July 2001, para. 47). I find it difficult to see how anyone can look at the policies and practices that have been detailed before the Court and find that, when taken together, the systemic character of these segregationist acts, including the explicit, legislated policy that self-determination in Palestine is reserved for Jewish persons only, do not reveal the purpose of dominating the Palestinians.” (para 40) (See also Bastaki).

Even if the Court did not explicitly qualify the discriminatory measures as apartheid, the fact that multiple judges alluded to such qualification may trigger and inform potential investigations pursuing individual criminal responsibility. In the ongoing case before the ICC apartheid (as a crime against humanity under Article 7 ICC Statute) is not one of the charges in the arrest warrant applications filed by the Office of the Prosecutor in May 2024. However, in the amicus curiae submissions filed before the Pre-Trial Chamber, some experts have requested the Chamber to include additional charges, inter alia the crime against humanity of apartheid.

Settlement Policy and Forcible Transfer

The ICJ was also called upon to examine the consequences arising from Israel’s settlement policy, i.e. the residential communities established or supported by Israel in the OPT. The Court relies on extensive evidence of Israel’s policy of providing incentives for the relocation of Israeli individuals and businesses into the West Bank, as well as for its industrial and agricultural development by settlers, and the integration of these settlemens into the territory of Israel. The Advisory Opinion makes a determination based on international humanitarian law and finds the transfer of settlers and Israel’s maintenance of their presence to be contrary to the sixth paragraph of Article 49 of the Fourth Geneva Convention (para 118). Furthermore, the Court considered that forcible evictions, extensive house demolitions and restrictions on residence and movement that leave little choice to the Palestinian population in OPT are contrary to the prohibition of forcible transfer of the protected population as per the first paragraph of Article 49 of the Fourth Geneva Convention (para 147). In this context, the Court explicitly refers to ICTY case law on the definition of ‘forcible transfer’:

“(T)transfer may be “forcible” — and thus prohibited under the first paragraph of Article 49 — not only when it is achieved through the use of physical force, but also when the people concerned have no choice but to leave (see International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Appeals Chamber, Judgment of 22 March 2006, para. 279). Therefore, the absence of physical force does not exclude the possibility that the transfer in question is forcible.” (para. 145)

The findings on settlement policy and forcible transfer did not come as a surprise given that the ICJ had already declared the settlement policy of Israel overall to be in violation of international law in its 2004 Wall Advisory Opinion. Now, however, these findings, combined with the large-scale violence, including sexual and gender-based violence, against the Palestinian population (paras. 148-154), may form the foundation for potential prosecutions based on war crimes and crimes against humanity committed by Israeli authorities.

As in the case of apartheid, there is no explicit characterisation in the international crimes framework in the Advisory Opinion. But again, President Salam, in his Separate Declaration, frames these violations as crimes under international law. He points out several facts which indicate that the State of Israel and its high ranking officers have been in full knowledge of the illegality of their actions and continued to act in clear violation of international law (para. 11). He explicitly recalls the obligation of all the State parties to the Geneva Conventions to punish and track down those responsible for ordering and committing such offences (para. 12).

Implications for Individual Criminal Responsibility

The Advisory Opinion was sought by the General Assembly in January 2023 on the ‘ongoing’ or ‘continuing’ policies and practices and therefore was not connected to Israel’s conduct in the Gaza Strip in response to the attack carried out against it in October 2023 – making it significant for its long-term implications even outside of the current context. Even though the ICJ held back on framing these violations as ‘international crimes’ as such, its findings (both on settlement policy and apartheid) at least provide a reasonable basis to believe that crimes against humanity and war crimes have been perpetrated by the State of Israel in the OPT against the Palestinian population. As a result, there are several direct and indirect consequences with respect to individual criminal responsibility.

In terms of direct consequences, it is clear that States are now not only expected to but also obligated to move beyond the diplomatic condemnation of such violence (see also Goldmann). As individual Judges have made explicit, third States have an obligation to prosecute and punish those responsible for serious violations of international law. While opening structural investigations⁴⁾ to prosecute Israeli officials for these violations under universal jurisdiction is one side of the coin, the other side carries the responsibility to not become complicit in war crimes and crimes against humanity themselves. With the findings of the ICJ, third States and other private entities have been made aware of the illegality of the conduct of Israel in the OPT in no uncertain terms, therefore opening up the possibility for both civil and criminal liability claims in many parts of the world. Translated to the area of criminal law and subject to further requirements specific to this area, individuals, be it State officials or corporate executives, can be held accountable for knowingly aiding or abetting or otherwise providing direct and substantial assistance to the crimes in question. Such complicity may take the form of transferring weapons, other essential material support to Israel, contributing to war crimes and crimes against humanity including deportation, forcible transfer of population and possibly apartheid.

As an indirect consequence, the Advisory Opinion has laid the groundwork for broadening the scope of prosecutions at the ICC. Although the violations before October 2023 are not a part of the arrest warrants filed by the ICC Prosecutor in May 2024, the ICC has jurisdiction and has long been requested to investigate these violations in the occupied territory since 2015 (when Palestine ratified the ICC Statute). While the findings in the Advisory Opinion do not meet the evidentiary threshold required for a trial, they do lend weight to pre-trial considerations and the need to prioritise the situation at the ICC.

Even in the ongoing proceedings which are concerned with events since October 2023, there are several issues raised by amicus curiae briefs before the ICC that the ICJ has indirectly addressed in its Advisory Opinion. Consider the issue of complementarity, for example. Germany’s arguments before the Pre-Trial Chamber for not issuing arrest warrants against Israeli officials rest on the claim that Israel has a functioning and independent judicial system which should be allowed more time in the face of an ongoing armed attack, and be given a genuine opportunity to present its domestic investigation and legal review mechanisms before the ICC intervenes (for a critical analysis see Ambos). The ICJ’s findings on Israel’s continued violations despite knowing the illegality of its conduct and its failure to punish these violations especially since the Wall Advisory Opinion (para. 154) arguably provide a compelling record to challenge this claim regarding the willingness of Israel to prosecute these violations.

Conclusion

It is clear that the 2024 Advisory Opinion will strengthen (or undermine) the claims of interested parties before the ICC, given the overlapping subject matter. Unlike the Genocide judgment mentioned above, the findings will likely impact the establishment and assessment of facts more than the legal questions of international criminal law proper. What remains to be seen, however, is how much weight the ICC Judges will attach to these findings in the current proceedings. A first indication gives the ICC Prosecutor’s consolidated response to the amicus curiae observations of 23 August 2024, which not only refers multiple times to the Advisory Opinion (e.g. para 2)⁵⁾ but also, indirectly, explicates the division of labour between the ICJ and the ICC and the somewhat complementary function of the two institutions:

“The ICJ has already addressed the situation in the oPt on four separate occasions during 2024, and it is now for the Court (the ICC) to ensure that there is no delay in the pursuit of criminal accountability in the Situation in the State of Palestine.” (para 11; emphasis in the original)

Even more than at the ICC, the ICJ’s determinations are likely to increase pressure on national prosecutors to initiate prosecutions for the commission of international crimes on the basis of the principle of universal jurisdiction. With findings on genocide (from Serbia/Bosnia to Ukraine and Gaza) and now indirectly on crimes against humanity such as apartheid or forcible transfer, the ICJ is on the verge of becoming, reluctantly perhaps, a protagonist of international criminal justice.

We acknowledge that this contribution is situated in the context of the broader critique of the international legal discourse in Germany regarding the situation in Palestine, in particular the impact of silencing and censorship on voices of Palestinian origin. We believe that it is crucial for platforms, especially German platforms, to provide space for discussions in all their political and legal complexity and to actively address the perception of bias by including more diverse voices and perspectives. We see our own contribution as an imperfect step towards this effort.