If properly structured, both a commission of inquiry and a preliminary examination by the Israeli police could arguably meet existing complementarity standards.
On May 20, the prosecutor of the International Criminal Court (ICC), Karim Khan, announced his decision to file requests for arrest warrants to the ICC Pre-Trial Chamber. The requests call for the arrest of three senior Hamas leaders—Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh—and two senior Israeli leaders—Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant. With respect to the Israeli suspects, the ICC prosecutor claimed that Netanyahu and Gallant formed a common plan to starve the civilian population in the Gaza Strip, or at least knew that the siege they decided to impose on the Gaza Strip would inevitably cause starvation and other forms of severe harm to the civilian population. These charges have received a mixture of acclamation and criticism.
We have previously argued that there are some problems with the legal claims made by Khan, and we have questioned the manner by which he appears to have bypassed some of the procedural requirements relating to complementarity under the ICC Statute before submitting his application for arrest warrants. Here, we discuss possible ways by which Israel can legally respond to the arrest warrants, if and when they will be issued by the pre-trial chamber, focusing on its potential claim of complementarity.
Complementarity, in brief, means that if a state with a jurisdictional link to the alleged crimes (in this case, Israel) genuinely conducts investigations of the same allegations or prosecutes substantially the same crimes, the ICC will defer to this state and not proceed further with the case. As explained below, invoking complementarity with regard to the Israeli officials mentioned in the request for arrest warrants would satisfy the principles that underlie the ICC Statute and offers a realistic option for Israel to pursue.
To be clear, there are other options on the table in Israel. Some observers do not want Israel to cooperate with the ICC prosecutor, even suggesting that Israel should try to convince its allies to impose sanctions on the prosecutor and other ICC officials involved in the issuance of arrest warrants. In our opinion, at this stage of the proceedings, it is unlikely that such sanctions, even if imposed, will be effective, regardless of the serious concerns regarding their propriety (see Buchwald and statement by ICC member states). This is because the prosecutor and judges of the ICC will lose all credibility if they simply drop the Israeli case at this stage in response to such sanctions.
Others believe that Israel should simply ignore the ICC prosecutor altogether (indeed, several cases before the ICC have been inactive for many years, arguably due to lack of cooperation by the relevant state—see Burundi, for instance). This strategy also seems very risky to us. Among other things, ICC arrest warrants pending against Israeli leaders would seriously damage Israel’s foreign relations and might also incentivize other countries to initiate criminal proceedings against Israeli officials before their domestic courts.
Another option would be for Netanyahu and Gallant to request to voluntarily appear before the ICC and contest the allegations leveled against them, as Kenyan leaders did in the past when confronting charges. Given Israel’s deep mistrust toward the ICC in general, especially now toward the current prosecutor, it is highly unlikely that the Israel leadership would actually take this route. (Given news reports alleging attempts by Israeli officials to interfere with the ICC preliminary examination and investigation, such deep mistrust is probably mutual.)
By way of elimination, then, complementarity is the preferred option for Israel and for the court. Under the assumption that Israel indeed chooses this route, we discuss what investigation mechanisms could generate the desired outcome: That is, what does Israel need to do to achieve genuine domestic accountability that will also result in international complementarity?
Complementarity: How It Works
Complementarity is one of the cornerstones of the ICC Statute. As the preamble to the Rome Statute emphasizes: “[T]he International Criminal Court established under this Statute shall be complementary to national criminal jurisdiction.” Scholars have observed that the Rome Statute’s complementarity regime “seeks to balance the supranational power entrusted to the court with the power of national jurisdictions in such a way as to ensure states that they would remain master over their own judicial proceedings as long as they do not allow perpetrators of serious crimes to go unpunished.”
In April, the Office of the Prosecutor published a Policy on Complementarity and Cooperation. The main thrust of this policy, which is a new iteration of the policy of positive complementarity, is a vision according to which “[c[omplementarity and cooperation, operating together, express the combined resolve of State Parties to guarantee lasting respect for and the enforcement of international justice.” This would be achieved through “a two-track approach, in which the Office will seek to engage in partnership with States to promote cooperation and complementary action wherever possible, while remaining vigilant of its mandate to independently and impartially investigate and prosecute Rome Statute crimes.” The policy also emphasizes that “[t]he cooperative effort of a plurality of actors working in concert to address atrocity crimes gives expression to the concept of unity in diversity.” Hence, the guiding principle of complementarity should be positive efforts toward the utilization of national proceedings in the enforcement of international criminal law.
Given this policy principle, how does complementarity actually work?
The relevant part of Article 17 to the Rome Statute reads as follows: “1. … the Court shall determine that a case is inadmissible where (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution[.]”
The jurisprudence of the ICC regarding Article 17 features several key aspects regarding its application.
The Framework of Article 17
Article 17 contains two principal tests. The first test is whether the state is indeed investigating or prosecuting. The state asserting complementarity must show that it is actively investigating or prosecuting the relevant criminal suspicions before the court moves to analyze whether the investigation or prosecution is genuine in nature.
As the Appeals Chamber stated in the Katanga admissibility judgment (2009): “[I]n case of inaction, the question of unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (that is, the fact that a State is not investigating or prosecuting or has not done so) renders a case admissible before the Court.”
The second test is whether the state conducted a genuine investigation. This test will be discussed further below.
The Contents of the Investigation
The investigation or prosecution by the state should mirror the investigation undertaken by the ICC prosecutor in terms of persons and issues reviewed. In the preliminary examination stage, the prosecutor assesses the admissibility of the case according to Article 17 (see Article 53(1) to the Rome Statute). In practice, this means that the prosecutor assesses whether the relevant state has deployed its investigative system vis-a-vis the crimes that are the focus of the prosecutor’s preliminary examination.
When a complementarity claim is considered during preliminary examination or at early stages of the investigation (namely, after the prosecutor formally moved from a preliminary examination stage to an investigation stage, and notified the relevant states of this decision, pursuant to Article 18), the test for the contents of the domestic investigation is as follows:
[F]or the purpose of admissibility challenges under article 18 of the Statute, a State is required to demonstrate an advancing process of domestic investigations and prosecutions of the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation. The domestic criminal proceedings must sufficiently mirror the scope of the Prosecutor’s intended investigation. The Majority observes that a pretrial chamber’s assessment in this context is a largely fact-driven inquiry. —Philippines admissibility judgment (Appeals Chamber, July 18, 2023) (emphasis added)
If, by contrast, complementarity has not been asserted at the start of the prosecutorial investigation, but only after the prosecutor has already formulated specific charges in the case (for example, if the prosecutor has asked the pre-trial chamber to issue arrest warrants after the state has refrained from responding to a formal Article 18 notification—a sequence of events that we believe did not unfold properly in the case against the Israeli leaders), the burden on those seeking to assert complementarity pursuant to Article 19 of the ICC Statute becomes heavier. They must demonstrate that the parallel domestic investigation pertains to the same suspect and conduct (referred to as the “same person / substantially same conduct test”), per the ICC Appeals Chamber’s 2011 finding in Prosecutor v. Ruto.
Burden of Proof
The burden of proof that there is actually an investigation taking place rests with the state alleging so. Again, from Prosecutor v. Ruto:
[A] State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible. To discharge that burden, the State must provide the Court with evidence of a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case. It is not sufficient merely to assert that investigations are ongoing.
The Nature of the Investigation
In most cases in which the prosecutor was presented with a claim by a state regarding the existence of a parallel domestic investigation, it fell on the prosecutor or the pre-trial chamber to examine whether the claimed investigation was sufficient in nature. (See, for instance, the Philippines case.) One important question, in this regard, is whether the domestic investigation should be formally designated as criminal in nature from the beginning in order to satisfy complementary requirements—in other words, whether opening a criminal investigation is the only way to start an “investigation” for the purpose of asserting complementarity, or whether other types of domestic investigation that could eventually develop into criminal proceedings might also be deemed sufficient.
There are two main past instances where the ICC considered noncriminal investigations as potentially satisfying complementarity requirements at the preliminary examination or investigation stages. The most notable example is the U.K./Iraq case, which involved the Iraq Historic Allegations Team (IHAT), established by the U.K. to investigate allegations of wrongdoings by U.K. soldiers in Iraq. In December 2020, the prosecutor decided to end the preliminary examination regarding allegations against U.K. soldiers in Iraq, based on the fact that the U.K. conducted investigations through a number of investigation tracks, including review of systemic issues through the IHAT. According to the then-prosecutor, Fatou Bensouda, the totality of factors rendered the situation inadmissible by virtue of the principle of complementarity. Note that the IHAT investigations, which were central to the analysis, were not police investigations in the regular meaning of the term. (Although many of the IHAT staff were police officers, the investigations were not defined as criminal investigations; in 2017, the IHAT was replaced by a different organization, the Service Police Legacy Investigation (SPLI), which was, once again, institutionally independent from the police.) It is also noteworthy that none of the cases investigated in the IHAT framework was ever brought to trial in the U.K., that the IHAT investigation began in 2012 (one year after the last of the British forces withdrew from Iraq), and that some SPLI investigations were still ongoing at the time in which the prosecutor issued her final report. Despite all of these shortcomings and the heavy reliance on noncriminal investigations, the prosecutor found that “the UK authorities have not remained inactive” and that the record does not show that the investigations were not genuine.
A second relevant case is the Burundi case, where complementarity was considered at the opening of the investigation stage on the basis of commissions of investigation Burundi formed to investigate certain violations. The court rejected Burundi’s admissibility claim, but not necessarily because it involved commissions of inquiry, which the court noted have certain judicial and investigative powers and could refer persons to the competent authorities. Rather, it was shown that the investigations focused on opposition figures and did not take tangible investigative steps with regard to other potential suspects. Because they did not target the same group of individuals investigated by the prosecutor, their investigation was deemed inactive with respect to potential cases.
The case law of the ICC thus appears to permit, under certain conditions, an interpretation of Article 17 that would not necessarily require domestic investigations to be designated as criminal in nature in order to satisfy complementarity tests. But this is premised on the possibility that the investigation could eventually lead to criminal proceedings.
Otto Triffterer and Kai Ambos discussed this aspect of complementarity as reflective of a tension between the need for an effective criminal investigation and the need to accommodate the interests of the state in using flexible judicial mechanisms:
Judges of the Court might consider that a sincere truth commission project amounts to a form of investigation that does not suggest ‘inactivity’, ‘unwillingness’ or ‘inability’ on the part of the State to genuinely administer justice, thereby meeting the terms of article 17(1)(a) and (b). However, one of the legal problems of this approach lies in the fact that an investigation carried out by a non-judicial body such as a truth commission is not a criminal investigation stricto sensu, and as such, it would not necessarily lead to a prosecution. When sub-paragraph (a) refers to a ‘prosecution’, which is always a judicial activity, carried out by a purely judicial organ of the relevant State, one gets the sense that article 17(1) is concerned with ‘judicial proceedings’ as opposed to alternative mechanisms of justice. However, perhaps there is some room for accepting a ‘preliminary investigation’ carried out by a truth commission such as, the Israeli Kahan Commission of Inquiry established to investigate the 1982 Sabra and Shatila massacre, in so far as it is empowered to recommend a criminal prosecution and is acting on behalf of the State. (Emphasis added.)
It is important to note, however, that in the aforementioned Burundi case, the pre-trial chamber did seem to express a strong preference for mechanisms designed to lead to criminal prosecutions:
[A]n investigation must be carried out with a view to conducting criminal prosecutions …. Therefore, on the basis of this wording, national investigations that are not designed to result in criminal prosecutions do not meet the admissibility requirements under article 17(1) of the Statute.
Still, in view of the prosecutor’s decision in the U.K./Iraq case, and in view of the application of this principle in the Burundi case itself, it seems that what constituted an investigation “designed to result in a criminal prosecution” might depend on the actual investigatory powers and potential consequences of the investigation and not only its formal designation as a criminal investigation.
The two examples of the treatment of the U.K. and Burundi domestic investigations underscore a more general point regarding the way by which states may address allegations of serious violations of international criminal law occurring during armed conflicts. The process of holding state officials or service members accountable is, at times, a sensitive and difficult process, which might require, in practice, the establishment of a clear factual background, upon which legal accountability could then be subsequently founded. Without such a preliminary investigation process, the chances for a genuine criminal investigation, let alone prosecution, might be slim. There are several examples of such a sequence of events occurring in recent state practice. For example, the Liberian Special War Crimes Court was established after a Truth and Reconciliation Commission submitted its report, and the Central African Republic Special Criminal Court was established in the aftermath of a UN commission of inquiry.
Substantive Requirements of the Investigating Mechanism
Once it has been shown that there is an ongoing investigation or prosecution at the national level, the court and/or the prosecutor will determine whether the investigation or prosecution suggests that the state is willing and able to genuinely investigate the crimes in question. Article 17(2) specifies three sets of circumstances in which unwillingness or inability to genuinely investigate are demonstrated:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility… (b) There has been an unjustified delay in the proceedings… (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
As Prosecutor Khan recently clarified in the Policy on Complementarity and Cooperation and as the Appeals Chamber clarified in the Al Senussi admissibility judgment in 2014, while the ICC is not a human rights court, concepts developed in the international human rights law contexts can assist the court in interpreting Article 17.
First, in order for the investigation to be considered not “for the purpose of shielding,” it should be effective in nature. That is, the investigating authority should have the professional skills to conduct an investigation and should take all reasonable steps to secure evidence. The conclusion of the investigation should be based on a thorough and objective analysis of all the relevant elements. (See, for example, the European Court of Human Rights (ECtHR) judgment in Nachova v. Bulgaria (2005).)
Second, the length of the domestic investigation should be reasonable. Clearly, reasonableness here depends on the specific context. Still, an extended duration of time not justified by the complexity of the case would constitute, as a rule, an unjustified delay (see ECtHR W. v. Slovenia (2014)). It should be noted, however, that ICC prosecutors have been flexible in applying the reasonable time test. For example, in the Columbia situation, the preliminary examination was opened in 2004 and lasted for 17 years; only in 2017 were “Special Jurisdiction for Peace” courts established (following the 2016 peace agreement) to try the suspects of crimes also examined by the ICC.
Third, the domestic investigating body should be independent and impartial in its operation. The ECtHR has interpreted this to mean that “the investigating body must have a sufficient degree of independence from the authorities that are subject to investigation. This implies that the question of independence will have to be considered in the light of the relation between the State agents/authorities allegedly responsible for the events and those who carry out the investigations.”
The independence of the investigation implies not only the absence of a formal hierarchical or institutional connection between the investigator and the investigated, but also independence in fact—namely, in the actual operation of the legal system. (See the ECtHR judgment in Oğur v. Turkey (1999).)
Israel’s Domestic Investigation Options
Israel has an extensive record of conducting sensitive investigations directed at evaluating the legality of conduct of high-level government officials, including the conduct of elected officials in the execution of official state business. Such investigations can be divided roughly into two categories: criminal investigations and commissions of inquiry (COIs).
Criminal Investigations
Israel’s legal system allows criminal proceedings to be initiated against all elected and non-elected government officials, including the prime minister. The Knesset Immunity Law does afford, however, members of the Knesset and government ministers two kinds of immunity: a permanent substantive immunity for acts undertaken in the course of the performance of their duties, and a procedural immunity (immunity from being detained and prosecuted), which can be conferred by the Knesset only if a Knesset member or minister asks for it.
Over the years, the jurisprudence of the Israeli Supreme Court (ISC) severely limited the scope of these immunities. In the Bishara case (2006), the ISC declared that the substantive immunity afforded to members of the Knesset and to ministers is limited to the “realm of professional risk” associated with their official positions. This has usually been interpreted as pertaining to issues such as accidental disclosure of secret information during public speeches, and other minor offenses. Regarding procedural immunity, in Movement for Quality of Government (2005), the ISC limited the ability of the Knesset to afford such immunity to cases in which there is a credible claim that the attorney general was acting in bad faith on the basis of a political agenda. Such immunity is almost never available as a practical matter.
As a result of these developments, the Israeli attorney general was able to prosecute several Israeli former and incumbent prime ministers and ministers over the years without being barred by existing immunity laws. In one case, a former prime minister (Ehud Olmert) was convicted on corruption charges and sentenced to time in prison (which he duly served). The current prime minister, Netanyahu, stands trial at present before the Jerusalem District Court for charges of bribery, fraud, and breach of trust. In the same vein, a former president has been prosecuted, was convicted, and served time in prison for sexual offenses committed while holding public office.
As a procedural matter, investigations against elected officials usually start with a preliminary examination by the police or by the attorney general themself (for example, the criminal investigation against Netanyahu regarding his corruption charge began in July 2016 as a preliminary examination and became a full-fledged criminal investigation in December 2016). According to the relevant Attorney General’s Directive, a preliminary examination is an initial investigative step, intended to assist the relevant investigating authority in deciding whether to open a full-fledged investigation. Where, according to the results of the preliminary examination, an evidentiary basis for reasonable suspicion that a criminal offense was committed is found, a criminal investigation will be formally opened. However, if the result of the preliminary examination is that no reasonable suspicion of the commission of criminal offenses has been established, the investigation would be terminated at this stage.
The main justification for resorting to a preliminary examination is that the opening of a criminal investigation could entail, in and of itself, significant negative implications for the suspected persons. This is especially the case where a suspect is a public figure, whose reputation might be irreversibly tarnished by a criminal investigation, and where political opponents might try to use the criminal justice system in order to sideline their opponents. A preliminary examination designed to examine the factual basis of the allegations can filter unsubstantiated and politically motivated complaints. Note that preliminary examinations are also resorted to when some available incriminating evidence that pertains to an important matter of public interest exists, which is not yet sufficient to establish a reasonable suspicion of a crime. In any event, the ISC emphasized in Movement for the Quality of Government (2015) that preliminary examinations are part and parcel of the criminal process.
The Attorney General Directive also elaborates which investigative tools may or may not be used in preliminary examinations. Generally speaking, in a preliminary examination, the use of intrusive investigative tools will be more limited than at the full-scale criminal investigation stage. Thus, the police may collect forensic evidence, interview witnesses, look at electronic databases, and so on. Still, arrests, search warrants, and questioning under caution will not be usually undertaken at this stage of the process.
Commissions of Inquiry
Whereas in corruption cases involving members of the Knesset and other elected officials, criminal investigations would be the default accountability process, when the allegations or suspicions involve the conduct of decision-makers in connection with high policy matters, such as national security, commissions of inquiry are the traditional way through which the Israeli system initially ascertains the facts at hand and reviews the responsibility of high-level elected officials for serious policy failures. On that basis, the legal system can then proceed to impose different forms of legal accountability.
The Israeli COI Law (1968) authorizes the government to form a state COI for a matter of “essential public importance.” The president of the ISC is tasked with appointing the members of the commission, with the chairperson being a serving or retired ISC justice, or an appellate judge in the district court. A state COI can compel any person to testify before it, and it can collect all relevant materials. A state COI can also issue search warrants, and there is no protection against self-incrimination before it. At the end of the inquiry, the commission issues recommendations. It can issue general and thematic recommendations, as well as personal recommendations regarding the responsibility of specific individuals for any wrongdoing and appropriate sanctions—usually termination from office and bans against future appointments to certain positions. The government doesn’t legally have to adopt the recommendations of the state COI. However, the personal recommendations of a state COI have traditionally been implemented, almost with no exception. (Failure to do so could result in ISC administrative law proceedings aimed at compelling implementation of the recommendation under legal principles such as reasonableness and good faith.)
In appropriate cases, the state COI refers issues raising suspicion of criminal conduct to the attorney general to consider opening a criminal investigation based on its finding. According to Article 14 to the COI Law, testimony provided to the COI cannot serve as proof in a criminal trial, except in a criminal trial regarding perjury in testifying before the commission. Yet in the Yefet judgment, the ISC held that the Article 14 limitation applies only to submitting the testimony as direct proof in trial. By contrast, the police can use all of the material that was collected by the commission and all testimonies given to it in an indirect and derivative way. For example, the police are allowed to develop their investigation based on testimonies given before the COI and to confront witnesses with their COI testimonies.
As an alternative to a state COI, the government or any minister can also convene a government COI, according to Article 8A to the 2001 Government Law. In that case, it is the government and not the president of the ISC that chooses the members of the commission. If the commission is headed by a retired judge, the government can authorize the government COI to have powers that are essentially the same as a state COI.
State and government COIs were used in the past to examine allegations and suspicions of wrongdoing in the conduct of hostilities and other types of military operations. An illustrative example is the Kahan Commission, formed in 1982 to investigate claims that Israel was responsible for the massacre committed in 1982 by the Lebanese Christian Phalanges in the Sabra and Shatila Palestinians refugee camps near Beirut. The commission found that no Israeli officer played a direct part in the actual massacre. Still, it did find that several Israeli officials, most notably then-Minister of Defense Ariel Sharon, should not have ignored the risks associated with allowing the Phalanges to enter the camps. The Kahan Commission recommended that Sharon be removed from his role. The government acted upon this recommendation and removed Sharon from office, though he remained a member of the government as a minister without portfolio. Throughout his political career, Sharon never held the position of minister of defense again.
There were other COIs that reviewed decision-making in the context of conduct of hostilities. The Or state COI (2001) was appointed to investigate the events of October 2000 in which 12 Israeli Palestinians were killed by the police; and the Winograd government COI, formed after the Second Lebanon War (2006), discussed, among a number of issues, questions of Israel Defense Forces (IDF) compliance with international laws of war (including the use of cluster munitions). The Strasberg Cohen government COI was formed in 2008 to investigate the killing of a Hamas senior commander, Saleh Shehadeh, in 2002 in an operation in which 13 civilians were also killed. Finally, the Turkel Commission was formed as a government COI after the May 2010 flotilla incident, in which 10 persons were killed on board the Mavi Marmara ship, which tried to breach the blockade imposed by Israel on the Gaza Strip and responded with violence to IDF attempts to take control of the ship.
Pros and Cons of Each Alternative
So far, we have identified options within Israeli law and practice that could support both Israel’s existing accountability processes and international complementarity claims. These choices, made by Israeli officials, would be reviewed by the ICC to ascertain whether the entire process is genuine—namely, whether they were merely designed to shield the suspects from ICC proceedings. Several factors will affect this calculus.
Criminal Process and Effectiveness: Preliminary examination, as explained above, is part of the Israeli criminal process. It is designed to assist prosecutorial authorities in deciding whether to open a full-fledged criminal investigation. Professionally, it is normally conducted by trained police officers, supervised by state prosecutors, and uses accepted investigative tools. A state or government COI can also lead to a criminal investigation, but it is not necessarily designed to do so. Still, in a number of recent cases, COIs were instructed to coordinate aspects of their work that may interact with pending criminal proceedings with the attorney general, indicating awareness of the possibility of cross-over between testimonies and evidence presented in the COI and its findings, on the one hand, and criminal investigations and prosecutions, on the other hand (see here and here).
Investigative Authority: The legal powers of COIs (either a state COI or a government COI authorized to employ powers of a state COI), in terms of ability to gather evidence, are broader than the powers of the police when undertaking a preliminary examination (but not necessarily from the ensuing full-fledged criminal investigation). State COIs also have more resources at their disposal than a regular police examination or investigation, and they are allocated an independent state budget.
Independence and Impartiality: State COIs are designed to be independent of the executive branch: Their members are chosen by the president of the ISC, and they typically comprise highly respected and independent individuals (for example, serving or former judges, retired senior officials, and academics). In addition, hearings before state COIs are typically open to the public and/or televised. Government COIs have somewhat weaker independence and impartiality safeguards since their members are chosen directly by the government. Still, since the government wishes the conclusion of the COI to be publicly accepted, it usually appoints prominent individuals with a reputation for independence and impartiality. In the case of the Turkel COI, the government also appointed international observers in order to enhance the international legitimacy of the process and outcome.
Preliminary examinations and criminal investigations are typically undertaken by police officers. In cases related to the conduct of elected officials, such procedures would be subject to oversight by the attorney general or state attorney, who is head of the prosecution. These officials enjoy considerable institutional independence, designed to protect them from political interference in the criminal process. Since it is reasonable to assume that the office of the attorney general reviewed some of the decisions made by the prime minister and the minister of defense regarding the siege on Gaza—which are the subject of the ICC request for arrest warrants—the examination or investigation would need to be supervised by Ministry of Justice officials, who were not part of the relevant decision-making process, in order to maintain its independence and impartiality (a relevant precedent, in this regard, is the decision of Attorney General Menachem Mazuz to disqualify himself from the investigation of Olmert due a potential personal conflict of interest).
Conclusion
In the past, Israel’s independent judicial system and the willingness of its courts to apply key provisions of international law were sufficient to shield Israelis from criminal prosecutions based on violations of international criminal law. In addition, over the years, Israel has reformed its investigative mechanisms within the IDF to strengthen its ability to maintain complementarity with regard to Israeli soldiers. The recent requests for arrest warrants at the ICC create, however, a new challenge for Israel. This time, the question at hand is not the independence of Israel’s civilian or military justice system or the military system, but whether specific high-ranking officials have been or will be actively investigated with respect to specific suspicions. The internal IDF investigation mechanism was clearly not designed to deal with allegations against such civilian officials; and the current administrative law proceedings before the ISC relating to the legality of war-related humanitarian aid policies are not designed to impose criminal liability (although they may indirectly lead to that).
In the near future, decision-makers in Israel will have to make several difficult decisions regarding how to respond to ICC proceedings, including whether to make a complementarity claim at all. As discussed earlier, the ICC prosecutor is not supposed to be agnostic toward this choice. It is the ICC’s explicit policy to encourage national mechanisms to investigate the relevant allegations. Prosecutor Khan should therefore support, to the extent possible, the operation of the different Israeli accountability mechanisms—which, given their track record of independence even in cases involving high-ranking officials and military operations, have reasonable prospects of success. Support for a national investigation could be gained, for example, by giving Israeli authorities access to some of the evidence that Khan has already gathered (subject to appropriate confidentiality and witness protection safeguards) in order to provide them with a basis to launch a preliminary examination under Israeli law (such a decision requires, according to the Attorney General Directive, an initial evidentiary basis to justify the opening of a preliminary examination) or to support the work of a domestic COI.
If Israeli authorities move to invoke the complementary mechanism pursuant to the ICC Statute, they will have to choose between constituting a state or government COI or proceeding with a preliminary examination, which could lead to a criminal investigation. As mentioned previously, resorting to a preliminary mechanism before a formal criminal investigation is opened is compatible with the international practice of other states that faced serious allegations or suspicions relating to armed conflict situations.
A COI is an independent and flexible mechanism, but it is not explicitly designed to lead to criminal proceedings and might therefore raise questions as to whether it can be considered as an investigation under Article 17 to the Rome Statute.
We believe that a state COI could satisfy, under certain conditions, the complementarity requirements under the Rome Statute, provided that:
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It should be explicitly authorized to review the decisions of high-level officials in the Israeli government during the Gaza war regarding humanitarian assistance to the civilian population, and to make recommendations to the state prosecution regarding follow-up action required in order to establish the potential criminal responsibility of specific suspects.
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The COI has powers to investigate all relevant decision-makers.
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The COI acts with reasonable speed.
If this option is selected, we recommend considering the appointment of renowned international law experts from outside Israel as members or observers of the COI (as was done with the Turkel Commission).
The other option facing Israeli law enforcement bodies is to commence a preliminary criminal examination, by order of the Israeli attorney general (or the state attorney). This is a step that is almost always taken in Israel before opening a full criminal investigation against high-level government officials once an initial threshold of suspicions of a crime has been crossed (which the ICC prosecutor can help the Israeli authorities to establish). Such an examination could be considered as an effective investigative measure since it is clearly designed to lead to criminal charges. It therefore meets the requirements of complementarity under the ICC Statute. Such an examination should be conducted as a robust law enforcement process, with investigators equipped with express authority to employ all investigative tools available to the police. Still,this approach lacks many of the positive attributes of a COI, especially the degree of institutional independence and public legitimacy enjoyed by COIs, as well as the broad mandate and facilities required to fully chronicle and evaluate the decision-making processes and events comprising Israel’s policies toward humanitarian aid to Gaza.
– Amichai Cohen, Yuval Shany, Published courtesy of Lawfare.
