Image: jbdodane, CC BY-NC 2.0
The submission (pdf) argues that Israel’s failure to act upon the International Court of Justice (ICJ) order published earlier this year “obligates the [ICC] Prosecutor to substitute Israel in prosecuting inciters to genocide.”
Incitement to genocide and genocide are two separate crimes under the Rome Statute, which sets out the remit and powers of the ICC. The submission argues that incitement to genocide must be independently investigated and prosecuted.
In a case brought against Israel by South Africa, the ICJ found it plausible that genocidal acts, including incitement, have been committed against Palestinians in the Gaza strip during Israel’s military operation, launched in retaliation for the 7 October 2023 attacks by Hamas and other armed groups.
The ICJ order required that the Israeli state “take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.”
However, as noted by the submission to the ICC, “the Israeli Legal Adviser to the Government informed the Israeli Supreme Court of their decision not to open a single criminal investigation on the matter, in defiance of the Order of the ICJ” (emphasis in original).
Thus, the document argues, there is now a legal obligation on the ICC to extend its ongoing investigation against Benjamin Netanyahu and Yoav Gallant for creating “conditions of life calculated to bring about the destruction of part of the civilian population in Gaza.”
It argues specifically that the evidentiary standard of “plausibility” required by the ICJ corresponds to the ICC standard of “reasonable grounds to believe,” the relevant standard for issuing arrest warrants against the suspects.
Arrest warrants related to war crimes and crimes against humanity were issued by the ICC for Netanyahu and Gallant last month, along with another for Hamas leader Mohammed Deif, whom Israel claims to have assassinated.
The submission to the ICC cites eight individuals as having committed the crime of incitement to genocide:
- Yoav Gallant, the former defence minister;
- Isaac Herzog, the president;
- Israel Katz, the defence minister;
- Benjamin Netanyahu, the prime minister;
- Bezalel Smotrich, the finance minister;
- Itamar Ben-Gvir, the national security minister;
- Zvi Yehezkeli, a television journalist; a
- Giora Eiland, former major general in the Israeli Defence Forces.
The submission was filed by the lawyer Omer Shatz, and compiled with support from a number of law students at the Sciences Po university in Paris.
Documentation
