Summary of "Lawfare Archive: Prosecuting the Gaza War Before the International Criminal Court with Chimène Keitner"

Podcast Information:

• Title: The Lawfare Podcast
• Host/Author: The Lawfare Institute
• Episode: Lawfare Archive: Prosecuting the Gaza War Before the International Criminal Court with Chimène Keitner
• Release Date: May 31, 2025

Introduction

In this archived episode from May 23, 2024, Scott R. Anderson, General Counsel and Senior Editor at Lawfare, engages in a comprehensive discussion with Chimène Keitner, a professor at UC Davis School of Law and former Counselor on International Law at the U.S. Department of State. Their conversation centers on the International Criminal Court's (ICC) recent decision to seek arrest warrants for senior Israeli officials in relation to the Gaza conflict.

ICC’s Jurisdiction over the Gaza Conflict

Scott Anderson initiates the discussion by presenting the ICC's unprecedented move to issue arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. He prompts Chimène Keitner to provide historical context on how the ICC has asserted jurisdiction over the Gaza conflict.

Chimène Keitner explains that the ICC operates under the Rome Statute, a treaty that grants jurisdiction over war crimes, crimes against humanity, and genocide when certain conditions are met:

• Referral by the UN Security Council
• Consent by the state through treaty accession
• Territorial jurisdiction where crimes occur within a member state's territory

She emphasizes that Palestine, recognized as a non-member observer state by the UN in 2012, acceded to the Rome Statute in 2014, thereby granting the ICC jurisdiction over crimes committed on its territory, including the West Bank, Gaza, and East Jerusalem.

"The Rome Statute is pretty clear about when the court can exercise jurisdiction over the core crimes... national and territorial jurisdiction are in play in the warrants that the prosecutor is seeking here." (04:07)

Status of Palestine and ICC Jurisdiction

Anderson queries the contentious nature of Palestine's statehood and its capacity to consent to ICC jurisdiction. Keitner confirms that despite not being a full UN member, Palestine's observer status and accession to the Rome Statute allow the ICC to prosecute crimes committed within its recognized territories.

"Palestine has had the capacity to act like a state in a range of circumstances... the prosecutor has been investigating the so-called situation in the State of Palestine." (07:02)

Recent ICC Actions and Prosecutor's Motivations

The discussion shifts to the ICC prosecutor Karim Khan's recent actions. Keitner outlines that the ICC's process for issuing arrest warrants involves:

1. Determination of reasonable grounds to believe that individuals committed specific crimes.
2. Corroboration by a majority of a pretrial chamber of ICC judges.

She notes that Khan has innovatively constituted an expert panel to review the evidence, enhancing the credibility and thoroughness of the warrants.

"The prosecutor... compiled evidence through on-the-ground investigations, interviews, video evidence, and witness testimony." (06:35)

Allegations against Hamas Leadership

Anderson enumerates the five suspects named by the ICC, focusing first on the three Hamas leaders: Yahya Sinwar, Mohamed Al Masri, and Ismail Haniyeh. Keitner explains that the allegations against them include crimes against humanity and war crimes, primarily related to the October 7th massacre and subsequent actions against civilians.

"The charges against these three respond to the emotional connection... crimes against humanity and war crimes charges are extremely serious and well documented." (18:38)

She highlights the absence of genocide charges, despite some international voices labeling the actions as genocidal, noting the stringent intent requirements for such a classification.

Allegations against Israeli Officials

The conversation then transitions to the more novel and legally complex allegations against Israeli Prime Minister Netanyahu and Defense Minister Gallant. The charges focus on starvation as a method of warfare and the intentional deprivation of civilians from essential goods, marking a potentially first-time prosecution of such crimes by the ICC.

Keitner delves into the evolution of international law regarding famine as a crime, emphasizing the legal precision required to prosecute such allegations. She draws parallels to previous ICC actions, such as those against Vladimir Putin, to illustrate the prosecutor's strategy of targeting high-level officials responsible for systemic abuses.

"Starvation as a method of warfare... is a novel case for the ICC, signaling a focus on intentional policies that harm civilians." (31:00)

Legal Challenges: Head of State Immunity and Complementarity

Anderson raises critical legal issues, including the immunity of sitting heads of state and the ICC's principle of complementarity, which asserts that the court intervenes only when national jurisdictions fail to prosecute crimes effectively.

Keitner addresses head of state immunity, clarifying that international tribunals like the ICC do not typically recognize immunity for officials, especially when prosecuting crimes of significant magnitude. She references historical precedents, such as the Nuremberg Trials, to support this stance.

"Heads of state immunity is not generally a barrier to prosecution in international tribunals." (39:01)

Regarding complementarity, Keitner notes that the ICC's actions are consistent with its mandate to ensure accountability when domestic mechanisms are inadequate, even amidst ongoing conflicts.

Implications and Reactions

The episode explores the potential ramifications of the ICC's warrants on international relations, particularly between the ICC, Israel, and the United States. Keitner anticipates resistance from Israeli officials and highlights the likely strain on U.S.-ICC relations, especially given the Biden administration's recent supportive stance towards ICC actions in Ukraine.

"These arrest warrants will make travel for Netanyahu and Gallant much more difficult and could strain essential relationships." (53:10)

She also touches on the societal impact within Israel, suggesting that the warrants may reinforce a siege mentality prevalent among Israelis, viewing international actions as hostile.

Conclusion

Scott Anderson and Chimène Keitner conclude by reflecting on the broader significance of the ICC's actions in the Gaza conflict. They emphasize the delicate balance between pursuing justice and not hindering diplomatic efforts aimed at resolving the conflict. The discussion underscores the evolving role of international law in addressing complex and ongoing humanitarian crises.

"One can certainly take the position that accountability should not be put on hold indefinitely in the name of diplomacy that has not borne any fruits." (49:13)

Notable Quotes:

• "The Rome Statute is pretty clear about when the court can exercise jurisdiction over the core crimes..." — Chimène Keitner (04:07)

• "Palestine has had the capacity to act like a state in a range of circumstances..." — Chimène Keitner (07:02)

• "Starvation as a method of warfare... is a novel case for the ICC, signaling a focus on intentional policies that harm civilians." — Chimène Keitner (31:00)

• "Heads of state immunity is not generally a barrier to prosecution in international tribunals." — Chimène Keitner (39:01)

• "These arrest warrants will make travel for Netanyahu and Gallant much more difficult and could strain essential relationships." — Chimène Keitner (53:10)

This episode provides an in-depth analysis of the ICC's strategic legal actions in the context of the Gaza conflict, shedding light on the complexities of international law, jurisdictional challenges, and the interplay between legal accountability and geopolitical dynamics.