Alan Dershowitz: ICC’s Plan to Charge Israeli and Hamas Leaders Unlikely to Succeed Due to Own Charter

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The International Criminal Court (ICC) prosecutor is reportedly considering issuing arrest warrants against Israeli and Hamas leaders following the recent conflict between the two sides. However, there is a significant obstacle standing in the way of such a move: the ICC’s own charter.

According to the Rome Statute, which established the ICC, the court is only permitted to investigate individuals who are not subject to a genuine investigation or prosecution by their own country. Israel, on the other hand, has been conducting ongoing investigations into alleged war crimes and has a well-established judicial system that is capable of holding accountable those responsible.

The principle of complementarity, enshrined in Article 17 of the Rome Statute, states that the ICC only has jurisdiction if a state is “unwilling or unable” to conduct a fair and thorough investigation. This means that the ICC cannot intervene in cases where a country is capable of investigating and prosecuting alleged war crimes itself.

Israel’s Supreme Court has been praised for its activism and commitment to upholding the rule of law. The country’s judicial system has put soldiers and settlers on trial, prosecuted former and current political leaders, and protected the civil liberties of its citizens. It is therefore unlikely that the ICC could argue that Israel’s judicial system is unwilling or unable to investigate and prosecute alleged war crimes.

Furthermore, Israel is not a signatory to the Rome Statute, and neither Hamas nor the Palestinian Authority is a state. This raises questions about the ICC’s jurisdiction over the conflict, even if it were to overcome the legal barriers.

The ICC’s consideration of issuing arrest warrants against Israeli and Hamas leaders is therefore likely to be blocked by its own charter. The court’s mandate is to uphold the rule of law, not to interfere in the internal affairs of sovereign states.

Alan M. Dershowitz
Alan M. Dershowitz
Professor at Harvard Law School for 50 years, now emeritus. Active in litigation, writing, and defense of civil liberties and human rights.

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