Toby Cadman, Joint Head of Guernica 37 Chambers, was recently interviewed by BBC News and LBC on Saturday 25 May 2024 on recent developments in the Israel/Palestine conflict before the International Court of Justice and the International Criminal Court. This comes at a pivotal time in which the principle of “equality before the law” and “impunity” are severely tested by Israel’s actions in Palestine and inaction by its diplomatic allies.
International Court of Justice’s Provisional Measures
On 24 May 2024, the International Court of Justice amended its earlier provisional measures Order dated 28 March 2024 following an earlier Order 26 January 2024 in the case of Application on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel). Toby explained the significance of this Order:
“It is ordering a cessation of military operations in Rafah, keeping open the border for humanitarian assistance, but also significantly ordering for Israel to allow in investigators and humanitarian assistance through other UN agencies.”
The Court characterised the humanitarian situation, in which 800,000 Palestinian civilians had been displaced from Rafah, as “disastrous” [para., 28]. In defiance of the legally binding Order, Israel continued to carry out airstrikes on Rafah. On Monday, 27 May 2024, Reuters reported that 45 people were killed after a fire and explosions triggered by strikes ripped through the crowded tent city of Rafah’s Tal as-Sultan neighbourhood.
The Prosecutor of the ICC Applies for Arrest Warrants
The ICJ Order follows an application on 20 May 2024 by the Prosecutor of the ICC Karim Khan KC to the International Criminal Court to issue arrest warrants against Benjamin NETANYAHU (Prime Minister of Israel) and Yoav GALLANT (Minister for Defence) for war crimes based on the use of starvation of civilians as a method of war, killing of civilians and intentional attacks on civilians. Both leaders are also accused of crimes against humanity for murder, extermination, persecution and other inhumane acts.
In addition, the Prosecutor also applied for arrest warrants against three Hamas leaders Yahya SINWAR (Head of Hamas), Mohammed AL-MASRI (Head of Al-Qassam Brigades) and Ismail HANIYEH (Head of Hamas’ Political Bureau), for the 7 October 2023 terrorist attacks. All three are sought by the Prosecutor for crimes against humanity of extermination, murder, rape, torture and other inhumane acts and for the war crimes of hostage-taking, rape, torture, cruel treatment and outrages upon the personal dignity of those in captivity.
The decision by the Prosecutor was supported and informed by a Panel of Experts in International Law.
The Future of International Law at Stake
In his interview with LBC, Toby warned that “Israel is at great risk of becoming a pariah state.” He pointed out that those states supporting Israeli military operations, which crossed the line, risked themselves breaking international law and said:
“What happens here will determine international criminal law and international humanitarian law for future generations. If we cannot enforce these rules for everyone equally, then what purpose do they serve?”
Asked what could be done to ensure Israel’s compliance, he noted comments by the UN Special Rapporteur on the Palestinian Territories, Francesca Albanese, that “Member states must impose sanctions, arms embargo and suspend diplomatic/political relations with Israel till it ceases its assault.”
What is clear is that not only do thousands of lives lie in the balance, but also the very existence of a rules-based system that applies to everyone is at stake.
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