Abdelghany Sayed examines how the International Criminal Court has abandoned its own sequenced approach of prioritizing cases according to their gravity — instead deeming cases against ‘both sides’ in the situation in Palestine equally grave, despite quantitative and qualitative assessments showing otherwise.
TWAILR: Reflections ~ 64/2024
As predicted, the International Criminal Court prosecutor has applied for arrest warrants to be issued against “both sides” in the situation1 in Palestine. The application begins with the Palestinian side, charging three senior leaders of Hamas, and then moves to the Israeli side, charging two senior leaders. The charges vary between crimes against humanity and war crimes on “both sides.” The application charges Palestinian leaders with eight offenses that make up crimes against humanity and war crimes, while seven offenses have been attributed to Israeli leaders.
The Office’s application for arrest warrants may be viewed as “historic” in a number of ways. It is the first time in history that an elected leader of a perceived “liberal, democratic” state is criminally charged with war crimes and crimes against humanity. Also, the legal community’s expectations were extremely low as a result of Prosecutor Karim Khan’s disappointing performance, since October 7, 2023. Every step Prosecutor Khan took since 7 October was late and inadequate; for instance, his first appearance (29 October 2023) occurred three weeks after the killing and destruction had already left tens of thousands dead, wounded, and displaced, where he completely refrained from addressing Israel’s conduct of hostilities as the direct cause of this suffering. It was thus not expected that he would charge “crimes against humanity” as he did; “war crimes” was the highest hope. While the latter charge would have been satisfied by an individual act, or even a low-ranked soldier, the former involves policy at the state level. It was not expected either that he would act against Israel’s top political leadership.
Not unlike the International Court of Justice proceedings where Israel is being accused of genocide, what is “historic” is not how the international legal institution is reacting to Palestinian suffering; it is rather the extreme suffering and criminality that force such institutions to act.
Since its inception, the Office of the Prosecutor (we will refer to it as the Office from here on) has maintained that it seeks to avoid an “ICC fatigue,” that is taking up fewer investigations in a more focused way. Instead of addressing all the crimes falling within the jurisdiction of the court, it dedicates its limited resources only toward the comparatively “most serious” international crimes and those “most responsible” for said crimes. The Office has expressed this approach, namely to compare and prioritize according to the seriousness and gravity of the crime and the degree of responsibility of the perpetrator, since 2003. Over 20 years, the Office has released policy documents to ensure transparency, coherence, consistency and predictability of its practice. But one particularly important question has been: which situations and cases will be selected and prioritized over others for investigation and subsequent prosecution?
The Office developed the following notions in response to this question: a) “gravity”: how to determine and compare the seriousness of crimes in different cases, and b) the “sequenced approach”: how the Office will act against different perpetrators in a given situation, prioritizing perpetrators who committed “graver” crimes, before moving on to the others, and hence the sequentiality.
In reality, the practice of both notions has been generally inconsistent. For one, both notions have been ignored in relation to the situation in Palestine.
A sequence without sequence
In its early years, the Office announced that it would follow a “sequenced” approach to case selection where cases within a situation would be prioritized according to their “gravity.” In its application in relation to the situation in Palestine, Prosecutor Khan decided to abandon the “sequenced approach” for no apparent reason, issuing arrest warrants equally against both Palestinian and Israeli leaders, deeming the cases against both sets of leaders equally grave. Why has the Office started with “both sides”? No explanation was provided.
In its application in relation to the situation in Palestine, Prosecutor Khan decided to abandon the “sequenced approach” for no apparent reason, issuing arrest warrants equally against both Palestinian and Israeli leaders, deeming the cases against both sets of leaders equally grave. Why has the Office started with “both sides”?
Previously, the Office followed a “sequenced approach” in Uganda and Côte d’Ivoire as two examples. In the armed conflict in Northern Uganda, the Office has acknowledged that both state and hostile armed groups may have perpetrated crimes within the jurisdiction of the ICC. The same acknowledgment has taken place in relation to the pre and post-election violence that has taken place in Cote d’Ivoire. But within the realm of sequentiality, the Office focused its activities on crimes perpetrated by anti-government actors, justifying its decisions by reference to the higher “gravity” of the latter’s conduct, when compared to crimes committed by state forces. Although the Office finds that crimes have been perpetrated by state forces in both countries, no state leaders have been investigated or prosecuted throughout 19 years in the case of Uganda and 12 years in the case of Cote d’Ivoire.
Then, in the prosecution of crimes committed during Kenya’s 2007-2008 post-election crisis, where contesting the results turned into massive violence, the Office suddenly abandoned its “sequenced approach.” From the outset, applications for arrest warrants targeted perpetrators from both sides, the winning incumbent president camp, and their opposition.
There might be practical justifications for the “sequenced approach”, such as the protection of victims, witnesses and evidence. However, we do not know why/how the Office would proceed sequentially in one situation, but horizontally in another.
Indeed, there is a pattern. In Afghanistan, the Office has acknowledged that both the Taliban on the one hand, and the US and its Afghan (then-state) allies on the other, may have perpetrated war crimes. Similarly, in relation to Libya, the Office has acknowledged that not only officials in Former President Muammar Ghadhafi’s government may have committed crimes within the ICC’s jurisdiction, but also the NATO forces. However, the Office chose a “sequenced approach” in both investigations precisely to de-prioritize crimes of NATO in Libya and the US in Afghanistan, and focus its activities on actors perceived to be uncivilized or illiberal, which it deemed “graver”. The Office’s acknowledgment and promise that the time will come for NATO crimes in Libya was made 13 years ago. No such investigations, let alone prosecutions, have taken place to date. In view of the Office’s history in Uganda, Cote d’Ivoire, and Libya, there is no reason to take seriously Khan’s implication that the de-prioritization of US crimes in Afghanistan was merely provisional. Khan’s much-criticized approach to Afghanistan, that is to “deprioritize” the crimes by US officials, must be viewed as a promise that was never meant to be fulfilled, just like the promise on NATO in Libya was.
It is striking to see the “sequenced approach” that enabled the Office to do so much in the past without explanation, being so easily abandoned, again, without much explanation. Why has the Office abandoned it in relation to Palestine and what standards have guided such an abandonment? Are Israeli officials’ crimes committed since 2014 — when the court began its jurisdiction on the situation in Palestine — equally “grave” to Palestinian armed groups’ crimes on one day: October 7, 2023?
This takes us to the Office’s view of the notion of “gravity”.
Selective “gravity”
At the earliest stage of its operation, the Office maintained that focusing on the “gravity” of the crimes would enable “focused investigations and prosecutions.” In its assessment of “gravity,” the Office considers quantitative and qualitative factors that include: the scale, nature, manner of commission, and impact of the crimes.2
The scale may be assessed considering, among other things, the number of victims, the extent of the damage, or the crimes’ geographical or temporal spread (high intensity over a brief period or low intensity over an extended period). The nature refers to the specific elements of each offense such as killings, rapes and other crimes involving sexual or gender violence and crimes committed against children, persecution, or the calculated imposition of life conditions on a group to bring about its destruction.
The manner of commission may be assessed in light of the means employed to execute the crime, the degree of participation and intent of the perpetrator, the extent to which the crimes were systematic, resulted from a plan, organized policy or otherwise resulted from the abuse of power or official capacity. The manner of commission also includes particular cruelty, such as targeting the vulnerability of the victims, or the use of sexual violence as a means of destroying groups, among others. The impact may be assessed considering the suffering endured by the victims and their increased vulnerability, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities, among other factors.
The notion of gravity is taken up to determine which situations to consider for investigation and potential cases emerging from them.
In order to abstain from investigating war crimes committed by the British military during the 2003 Iraq War, the Office adopted a fairly quantitative approach in its gravity assessment. In 2006, ICC’s first prosecutor Luis Moreno-Ocampo first noted that in Iraq, “the number of potential victims (…) – four to 12 victims of wilful killing and a limited number of victims of inhuman treatment.” He then presented his argument: the Office was busy at the time “investigating three situations [in Africa].” Each of these situations, he contended, involved “thousands of wilful killings as well as intentional and large-scale sexual violence and abductions,” and “collectively, they have resulted in the displacement of more than 5 million people.” Moreno-Ocampo’s approach was peculiar: in order to exclude the investigation into the situation in Iraq, he compared the number of victims in one case in Iraq not only to an entire situation in the continent of Africa but to the numbers of victims in all the situations he was investigating in Africa at the time.
Three years following Moreno-Ocampo’s 2006 Iraq letter, the same prosecutor downplayed the number of direct victims factor in relation to the investigation into crimes committed in Sudan and turned instead to another number: indirect victims. After two armed groups conducted in September 2007 a raid on African Union (AU) peacekeeping forces stationed in Haskanita, located in south Darfur, only 12 victims dead from the AU force sufficed to act against non-state leaders allegedly responsible. Moreno-Ocampo considered the broader “impact” of the crime on “indirect victims” crucial. “By killing peacekeepers, the perpetrators attacked the millions of civilians who those soldiers came to protect,” Moreno-Ocampo sought to rationalize his decision.
The “indirect victims” notion is not clear-cut anyway. However, Moreno-Ocampo’s interpretation is exceptionally curious. As the Court previously decided, the notion refers to those who suffered material, physical or physiological harm, owing to the harm suffered by the direct victim. It is established that a close relationship with the direct victim is necessary; the “indirect victims” category includes first-degree relatives and may extend to other relatives, e.g. aunts, cousins, and nephews. The category may also include those who suffered harm on account of their attempt to prevent harm or assist a direct victim. It arguably includes locals who suffer indirectly as a result of an attack directed at the civilian population. Nothing in the established policy and practice justifies extending it to the entire civilian population in the way Moreno-Ocampo did in the Haskanita case.
Curiosity gets even greater once Moreno-Ocampo is compared to his successor Prosecutor Fatou Bensouda. In the few years following Haskanita, Bensouda’s Office stubbornly refused to investigate the crimes Israeli forces committed in their raid on activists’ boats that sought in 2010 to break Israel’s naval blockade of Gaza (known as the Gaza Aid Flotilla). The Office considered Israel’s crimes of “insufficient gravity”. It referred to the limited number of victims (ten killings, some summarily executed, 50-60 injuries and hundreds of instances of outrages upon personal dignity). Even though the number of direct victims in the Flotilla was higher (i.e. in total hundreds of victims) in comparison with Haskanita (12 victims in total, all victims of killing), the Office argued, the number of “indirect victims” in the latter situation was much greater. The Office chose not to think of the entire population of besieged Gaza at the time as indirect victims, as the ICC judges noted in a subsequent decision (para. 47).
Numbers aside, in its insistence not to investigate the raid on the Gaza Aid Flotilla, the Office did not clarify why it relied on the limited number of direct victims, at the expense of “qualitative” considerations. As the Pre-Trial Chamber of ICC judges observed in its 2015 decision (para. 39), it was not clear why the Office ignored “the manner of the commission of crimes” in its assessment of Israeli forces’ conduct. As the assessment of this factor concerns whether the conduct implied any “particular cruelty,” it was necessary to consider it in relation to the allegation that “persons were shot multiple times, in the face while trying to cover their heads, or from behind, or after they surrendered and pleaded with the [Israeli Forces] to stop firing at civilians.” The Office never explained why the “particular cruelty” was not central, as it usually is whenever it addresses the conduct of the Africans it usually paints as “inhuman-human” beasts.3
Of course, the “manner of commission” itself is a problematic factor that enables cultural and political biases to intervene heavily. On one hand, acts that the modern (liberal) state commits (such as air strikes) are never deemed “cruel,” while the acts that only non-state actors or illiberal states commit (such as shooting people at point-blank range) are always deemed “particularly cruel” violence. On the other hand, it is the air strike, not summary execution, that kills and sometimes burns to death tens and hundreds in fractions of a second, wounds tens or hundreds and leaves them tortured under the rubble for hours or days, until they are saved or suffocated/starved to death, and displaces and destroys the livelihood of many more.
Moreover, the problem is that when modern liberal militaries shoot at point blank, the Office, suddenly, thinks of “the manner of commission” and “particular cruelty” as insignificant, as it did in the Gaza Aid Flotilla, but also as in Palestinians’ daily lives in East Jerusalem / West Bank during the period within the ICC’s jurisdiction.
No “gravity” and no “sequentiality”
The Office’s bothsidesist approach is indefensible in view of the comparatively more intense, widespread and grave crimes of Israeli officials, were they to be examined geographically, temporally, quantitatively and qualitatively. Of course, the conduct of members of Palestinian armed groups has inflicted harm on hundreds of Israeli victims (scale), including the wilful killing of Israeli civilians (nature), entailed in certain instances particular cruelty (manner of commission) and resulted in terrorizing the community (impact). However, to proceed horizontally against “both sides”, here is what the Office has chosen to ignore:
The Office’s bothsidesist approach is indefensible in view of the comparatively more intense, widespread and grave crimes of Israeli officials, were they to be examined geographically, temporally, quantitatively and qualitatively.
On the “scale” factor, the Office has ignored that everyone today in Gaza, who is not already a “direct victim,” is indeed an “indirect victim.” These are two million people. This is the case whether the Office chooses to stick to the narrow interpretation of the “indirect victim” concept (e.g. The Office’s Final Decision on Gaza Aid Flotilla, para. 89), or otherwise chooses to favor Moreno-Ocampo’s curiously loose interpretations in the Haskanita case. If numbers matter so much to the assessment of “gravity,” as in Iraq’s 2006 letter, it is inconceivable to compare the numbers of Israeli victims and the extent of harm resulting from a high-intensity attack conducted on one day, October 7, 2023, within a limited geographical scope, with Palestinian victims.
Israeli officials’ conduct has resulted in two million direct and indirect victims. Their conduct provides a rare example satisfying each possibility that may alone manifest the temporal and geographical aspects of the scale factor. The attacks are both of “high-intensity” and taking place “over an extended period of time” (2016 Policy Paper, para. 38). They are taking place in the entire geographical scope (i.e. Gaza). The crimes committed by Israel are indeed the gravest when a comparison is made against the aggregate gravity of any crimes within the Palestine situation since 2014, the beginning of the ICC’s temporal jurisdiction there. However, the same conclusion is still true even if we choose to replicate Moreno-Ocampo’s eerie comparisons in his Iraq Letter; namely, Israeli officials’ crimes are the gravest when compared to the aggregate gravity of crimes committed in the whole world, at least in some aspects, e.g. in relation to crimes againstchildren, journalists, aid workers and targeting religious and cultural objects.
The offenses by or as a result of the conduct of Israeli statesmen include wilful killing and wounding, torture and ill-treatment, rape, starvation, wanton destruction, displacement and unlawful confinement and hostage-taking. These satisfy the “nature” factor and top any conduct by other actors within the Palestine situation, both quantitatively as well as qualitatively.
On the “manner of commission” factor, the Office has ignored the “particular cruelty” demonstrated in the reports concerning sexual violence, torture and summary execution, and the videos that Israeli soldiers post routinely documenting their appalling crimes.
On the “impact” factor, the amount of terror inflicted on the entire population of Palestine is of significant gravity when compared with anything happening in the entire world. Certainly, within the investigation in Palestine, it is untenable to compare the gravity of the terror inflicted on Israelis on one day (October 7) with the terror Palestinians have suffered every day since 2014 — the beginning of the ICC’s temporal jurisdiction. This is true not only in Gaza, but it also extends to the terror inflicted on Palestinian citizens of Israel, and Palestinians in Jerusalem and the West Bank. The latter is incomparably graver.
Despite all this, the Office has chosen to ignore every single component of the gravity assessment established in policy and practice.
The Office also ignored that, according to its most recent policy on case prioritization (2016), it should prioritize cases with charges that reflect historically under-prosecuted crimes, such as crimes of sexual nature, against children, against historical/cultural and religious heritage, and against peacekeepers and humanitarian workers. Because these crimes have historically been ignored, the Office has issued specific policy papers on the particular attention it will pay to crimes against children, cultural heritage and gender-based crimes. The Office should also consider the impact of its activities on “ongoing criminality”; namely, how its intervention in a particular situation might result in a positive impact in relation to putting an end to a continuing crime.
On the one hand, it is again impossible to compare, neither quantitatively nor qualitatively, the ongoing experience of Palestinian children and women (especially in Gaza) to that of Israel’s children and women. On the other hand, Palestinian armed groups have simply not committed most of the crimes deemed “historically under-persecuted,” while Israeli forces have done so on a large scale (e.g. attacks on aid workers, journalists, and historical, cultural and religious heritage).
The need to consider the impact of the Office’s activities on “ongoing criminality” concerns any potential action exclusively against Israeli leaders. The crimes committed by members of Palestinian armed groups are simply not “ongoing.” Israeli officials, by contrast, are willing and able to keep their conduct ongoing and are indeed doing so at the time of writing. The Office has chosen to ignore this aspect in relation to continuing crimes, such as the military campaign in Gaza, the blockade of Gaza, settlement activity and crimes against humanity in the West Bank and Jerusalem.
There is evidence that members of Palestine armed groups committed crimes on October 7, as well as during the 2014 Gaza War. However, it is inconceivable how the Office has not viewed this conduct, however grave it is, such as in the case of the 2014 executions and torture by Hamas, as significantly less grave when compared to Israeli officials’ conduct.
No coherence or transparency, only predictability
I write because of a preoccupation about the legitimacy not only of the Court, but of international law itself. Looking at Khan’s role as special advisor with the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant (UNITAD), I see a prosecutor with a career focusing on non-state actors’ crimes, not in any country, but in Iraq, a country that has undergone one of the worst atrocities of the State, not only by imperial powers (e.g. US and Britain) but also by the postcolonial Iraqi state itself. I see him speaking the notorious language of the Global War on Terror. And I see him unjustifiably following a bothsidesist approach in a situation of settler-colonial occupation, a term that appears nowhere in the prosecutor’s application for arrest warrants.
I see a prosecutor with a career focusing on non-state actors’ crimes… I see him speaking the notorious language of the Global War on Terror. And I see him unjustifiably following a bothsidesist approach in a situation of settler-colonial occupation, a term that appears nowhere in the prosecutor’s application for arrest warrants.
In his application for arrest warrants, I see him beginning with the Palestinian side and charging their leaders with more offenses (including rape) for no apparent legal reason. I hear the words “victims and survivors” three times in relation to the Israelis; he humanizes them and foregrounds their suffering. In the part on Israeli officials’ conduct in Gaza and the West Bank, the word “victim” appears nowhere.
I have shown how coherency, consistency and transparency hardly describe the Office’s practice. “Predictability”, however, has been achieved, albeit in an undesirable way. It is indeed possible to predict that the Office will always be guided in its operation by political and cultural biases toward the modern (liberal) state and against non-state actors or state actors perceived to be illiberal (as in Afghanistan, Libya and Uganda).
These biases, to follow Anthony Anghie’s analysis of international law’s colonial origins, have in many ways shaped how the Office developed its policy and practice. In other words, it is an oversimplification to view how the Office is acting in relation to Palestine as an aberration. Rather, what is known today as the “Policy Paper on case selection and prioritization,” published in 2016, is itself the result of 20 years of a practice in which the Office has consistently endeavored to avoid action against the modern (liberal) state and focus its resources on the non-state or illiberal state actors.
Despite this, even this policy and practice, though erratic and shaped by deeply embedded biases, could not be observed in a transparent and consistent manner. Again, standards were compromised in the Office’s endeavor to adhere to the Western liberal bothsidesist view of the Israeli domination of Palestine, also cynically known in such mainstream circles as the “Israeli-Palestinian conflict”.
What is the message that Prosecutor Khan’s unsolicited deviation from established policy and practice sends to the victims whose suffering the Office has ignored, invoking various ostensibly technical legal pretexts? These are not only victims in Palestine, but also, for instance, in Afghanistan, Iraq, Libya, Uganda and Côte d’Ivoire, among others. I do not know what this message is. But it is certainly inconsistent with the Office’s claim that it “acts independently, impartially and objectively, consistent with its statutory duties and core values.”
Abdelghany Sayed is a PhD student at Kent Law School and a former ICC Office of Prosecutor member of staff. This article was originally published by Mada Masr.
- The terms “situation” and “case” are defined nowhere in the Rome Statute, the treaty that establishes the court. However, according to the Court’s jurisprudence in the Democratic Republic of Congo and Kenya, a “situation” means a geographical and temporal scope containing a number of potential cases against various actors potentially belonging to various organizations or states. It is used as opposed to “cases” which refers to specific crimes and one or more specific perpetrator(s) belonging to a specific group. The Court’s proceedings usually begin with a “situation,” which relates to a particular geographical scope, and proceeds after a starting point of time, in which one or more international crimes appear to have been committed. One or more cases then might follow, the object of which would be specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects.
- “Report on Prosecutorial Strategy,” (ICC, 2006), p.5; Policy Paper on case selection and prioritisation, (ICC, 2016), p. 13-14.
- Sofia Stolk, “A Sophisticated Beast? On the Construction of an ‘Ideal’ Perpetrator in the Opening Statements of International Criminal Trials,” in the European Journal of International Law, (2018).