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Comment by pyuser583 | Hacker News Reader

If Netanyahu produces a document from the Israeli Supreme Court allowing his actions, doesn’t that make it impossible to prosecute him?

ICC works in conjunction with national courts. If a country has a functional, independent judiciary, that judiciary gets the right to address the wrong. Or not.

Israel’s judiciary is both functional and independent. Very independent. Of Netanyahu in particular.

And the Israeli judiciary seems to be going along with this.

Source: https://www.icc-cpi.int/about/how-the-court-works

> The ICC is intended to complement, not to replace, national criminal systems; it prosecutes cases only when States do not are unwilling or unable to do so genuinely.

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> If Netanyahu produces a document from the Israeli Supreme Court allowing his actions, doesn’t that make it impossible to prosecute him?

No, it does not.

> ICC works in conjunction with national courts

Not in the way you are suggesting.

> If a country has a functional, independent judiciary, that judiciary gets the right to address the wrong

No, the ICC will rule a case inadmissible if a state has investigated and/or prosecuted that specific case (not just if it has some general level of legal functionality), unless the ICC also fines that the investigation or prosecution was not genuine (e.g., was pretextual for the purpose of, say, giving the accused an exonerating document to wave around to protect against ICC prosecution.)

See Article 17 of the Rome Statute.

Does a country have to be a signatory to the Rome Statute to be subject to it?

No, in fact Putin was recently subjected to it.

Putin’s crimes were committed in Ukraine, which is a signatory (though not a party to it [yet]).

The "State of Palestine" (the official name in this context) is a signatory to the ICC, and is the location of the committed crimes. I guess you could technically make an argument that despite Sderot et al being an occupation under international law, because they are in the actual control of Israel which isn't a signatory then crimes committed there couldn't be prosecuted by the ICC. Given that the only party who would try to escape arrest for crimes in those areas are Hamas leadership, I doubt that's what Israel wants. Also, I doubt Hamas is willing to legally state any part of Palestine is "Israel", particularly for a relatively non-existential threat like an arrest warrant.

My limited understanding is the location/country of the proposed violation or the violators need to be a signatory. In this case, Palestine is a signatory so the actions of Israel in Palestine as well as the actions of Hamas (acting anywhere) are within the court's jurisdiction.

> If Netanyahu produces a document from the Israeli Supreme Court allowing his actions, doesn’t that make it impossible to prosecute him?

No. Israel’s courts ratifying alleged war crimes is the Israeli national system being “unwilling or unable to [apply international law] genuinely.”

And to add on to JumpCrisscross, ICC warrants are only valid in countries that are currently member states of the ICC [0], though countries will gladly turn the other eye depending on mutual interests (eg. Narendra Modi's close relationship with Japan, France, Singapore, UAE, and Israel because they didn't enforce US travel sanctions on him when he was CM of Gujarat in the 2000s).

Notably, the US is NOT a signatory of the ICC (this was a whole thing in the Iraq War days).

[0] - https://commons.wikimedia.org/wiki/File:ICC_member_states.sv...

For folks interested in this process, take a look at the ICC proceedings against Ali Muhammad Ali Abd-Al-Rahman [1] regarding war crimes in Darfur.

[1]: https://www.icc-cpi.int/darfur/abd-al-rahman

Also the Frontline documentary from 2019 about Ratko Mladić's trial [0]

(Edit: I'm a dummy, this was the ICTY, not the ICC, but the ICTY was the precursor model of the ICC in the aftermath of the Yugoslav Wars).

[0] - https://www.youtube.com/watch?v=HJh8fuaqslo

I don't think this is relavent to the complementary principle.

If the israeli judicial system made a good faith attempt to prosecute this crime following the standards of international law, it would probably prevent this warrant even though Israel is not a party to the court.

It kind of gives the game away when you see that the US is not a signatory but had a big say in appointing the Chief Prosecutor Karim Khan in 2021 and have instituted the "Invade the Hague Act" that would allow the US to invade the Hague if they were to prosecute any American personnel

https://en.wikipedia.org/wiki/American_Service-Members%27_Pr...

The Biden admin cooperated with the ICC, specifically quietly handing documents to the ICC that details Putin's war crimes and urging them to submit arrest warrants for Putin. Notably Russia is also not a signatory of the ICC, so there is definitely precedent for this process that even has had the backing of the US.

IMO Khan's speech today really speaks for itself. The "International Rule of Law" is nothing but a joke if we don't not apply it equally and blindly that will ultimately lead to the degradation of modern society and our species. I highly urge people to go and check out his speech on the matter and to form your own opinion.

International rule of law is a joke.

“Rule of law” means all people are equal before the law.

It’s hard to pull off. Some nations have, most haven’t.

But Chairman Xi isn’t going to face charges for his crimes against Uyghurs.

Most countries have no rule of law, and internationally, none do.

The international in international law should give you a hint as to why it doesn't apply to the Uyghurs.

There is precedent for the ICC [1], I believe a majority of all the ICC convictions were actually charging individuals committing crimes against their own people without crossing state lines.

The fact that China gets away with its treatment of the Uyghurs (and plenty of other major powers that technically break ICC laws) is definitely an example of how much international law is a farce, though they aren't getting around the ICC by staying within their own borders.

[1] https://en.m.wikipedia.org/wiki/List_of_people_indicted_in_t...

>The "International Rule of Law" is nothing but a joke if we don't not apply it equally and blindly that will ultimately lead to the degradation of modern society and our species.

Part of the "Rule of Law" is enforcement of that law. Who could realistically enforce it against the US? How about China?

Rule of Law requires you first establish monopoly on violence via global hegemony. If you are willing to accept some kind of global state where individual nations have lost sovereignity then okay, but if not what ends up happening is you limit your own actions while your enemies (who don't care for such rules) can walk free to do whatever.

If the Israeli Supreme court allows his actions, then that sounds like it would fall under the "unwilling" part of "unwilling or unable to do so".

>produces a document from the Israeli Supreme Court

This would mean that Netanyahu has been charged, tried and eventually acquitted of the same crimes. ICC investigates if the national proceedings are genuine.

To start the process, Israeli prosecutor must prosecute.

Israel courts have a process of pre-clearance. If the “criminal act” was pre-cleared by the Israeli courts and found lawful, that’s a big deal.

That would make the Israeli court system “unwilling” to apply international law.

That just sounds like the term "unwilling" is to be arbitrarily applied when the ICC doesn't like the national court's decision.

If Israeli courts give clearance to conduct that violates IHL, then that is certainly an unwillingness to enforce said laws.

If Israeli courts seriously and in good faith reviews the conduct and find it lawful, then it’s simply a disagreement between two courts.

Does the fact that the ICC disagrees with the Israeli courts mean the ICC is correct?

The US states:

> The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.[0]

---

The ICC defines:

> 1. Complementarity: The principle of complementarity governs the exercise of the Court’s jurisdiction. This distinguishes the Court in several significant ways from other known institutions, including the international criminal tribunals for the former Yugoslavia and Rwanda (the ICTY and the ICTR). The Statute recognizes that States have the first responsibility and right to prosecute international crimes. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings. The principle of complementarity is based both on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness, since States will generally have the best access to evidence and witnesses and the resources to carry out proceedings. Moreover, there are limits on the number of prosecutions the ICC, a single institution, can feasibly conduct.[1]

namely,

> The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings.

The US argues that the ICC has not adequately allowed this process to play out through the courts in Israel.

---

The Jerusalem Center for Public Affairs states:

> The criteria of unwillingness or inability to carry out proceedings would involve some indication of purposely shielding the accused from criminal responsibility or a lack of intent to bring the person to justice. This may be inferred from political interference or deliberate obstruction and delay, from institutional deficiencies due to political subordination of the legal system, or procedural irregularities indicating a lack of willingness and inability to investigate or prosecute genuinely.[2]

---

Imo the hermeneutics are clear, though it will be up to the lawyers from either side to make arguments in favor of/against.

[0]: https://www.state.gov/warrant-applications-by-the-internatio...

[1]: https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/20B...

[2]: https://jcpa.org/article/would-judicial-reforms-in-israel-op....

a counterpoint

"Prosecutor’s rush to seek these arrest warrants" does not seem to be true.

ICC prosecutor did not bring this case quickly without warning. He has consistently demanded that action must be taken or he will prosecute. Israel's Supreme Court has the authority to conduct judicial review of laws and government decisions and intervene in exceptional, extreme cases. Israeli prosecutors have had time to charge.

>Since last year, in Ramallah, in Cairo, in Israel and in Rafah, I have consistently emphasised that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale. I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences. I could not have been clearer.

>As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come.

https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-...

btw. The US has demanded same and put conditions to military aid.

But the amount of aid going into the Gaza strip has increased dramatically (up to the Rafah crossing being taken). i.e. Israel did take action on this matter.

EDIT: It's also important to note the odd timing of asking for arrest warrants for the Hamas leadership at the same time as the Israeli arrest warrants.

Clearly unlike Israel there is no chance in *$#@ that Hamas would prosecute their own leadership for violation of international humanitarian law. The Hamas violations have also occurred earlier.

I.e. Israel should be given more time for its independent legal system to evaluate whether or not there's a case and pursue it. Israel justice system has put prime ministers and presidents on trial. Hamas shouldn't be given any time.

Given this you'd think arrest warrants for Hamas leadership would come a lot sooner.

Since this isn't the case one has to wonder if the prosecutor is doing a "both sides" kind of thing, maybe afraid of backlash if they only go after one side, in which case the response of Israel to the request to increase aid (which has happened) is not relevant.

> up to the Rafah crossing

How long was that supposed ramp up? Maybe a couple weeks out of 7 months.

There are details here: https://govextra.gov.il/cogat/humanitarian-efforts/home/

EDIT: I can't find a concise summary but latest update: "422 aid trucks were inspected and transferred to the Gaza Strip, yesterday, (May.19). These trucks entered from the various aid routes we developed: Ashdod port, Erez crossing, Judea and Samaria, and JLOTS (maritime route)."

Supposedly the UN said Gaza needs a minimum of 100 trucks a day. https://www.newarab.com/news/un-puts-gaza-humanitarian-aid-n...

EDIT2: It's worth mentioning that since Israel took control of the Gaza side of the Rafah crossing Egypt is refusing to let aid in through that crossing.

I live about eight kilometers from Gaza, the aid trucks are on all the highways at pretty much capacity, and it's been like this for quite a while. I really don't see how much more aid could get in without building more infrastructure, and in fact there is a new port in the strip being built (maybe done already).

It should be noted in context that even bringing in aid is dangerous. The population attacks the aid drivers for two reasons (one, to get the aid, and two, they consider those drivers "traitors" and have been attacking them for long before the current conflict). And there is not insignificant risk to the Gazans as well, there was an incident a few months ago where an aid truck ran people over trying to stop it and some people were killed in a very gruesome fashion.

> and in fact there is a new port in the strip being built (maybe done already).

I think yesterday or the day before the first aid came in via the port, actually.

Wait they’re attacking the aid drivers as traitors!?!

Yes, because those aid drivers collaborate with the Israelis. This was going on long before the current war, when they were driving products and not aid.

If you assume rice is 600 calories per kg. And an average need of 2000 cal/day-person. 2,000,000 people in Gaza, and a truck can carry 35,000 kg.

Need about 2X10^6 X 2000 = 4X10^9 calories as day.

At 600 cal/kg you need then 6.67 X 10^6 kg of rice per day.

Truckloads = 6.67X10^6 kg / 35,000 kg/truck = 190 truckloads of rice per day.

Most likely conclusion is Salafists and their supporters lie about everything.

…but rice is 1300kcal/kg, so you need 88 trucks/day.

Are you the salafist you speak of?

I fucked up, rice is about 600 cal/lb freedom.

> Are you the salafist you speak of?

https://en.wikipedia.org/wiki/Salafi_movement

So they'll be eating this rice raw, then? Raw uncooked rice with a nice cup of seawater to quench their thirst.

> Israel justice system has put prime ministers and presidents on trial.

> Clearly unlike Israel there is no chance in *$#@ that Hamas would prosecute their own leadership for violation of international humanitarian law.

Huh, I almost forgot there were massive protests against the current PM when he set out to cripple the ability of the said Judiciary from trying him in court. But go on.

You also forgot that the PM failed and the Judiciary is still independent and the PM is still under trial. What's your point exactly? What you're saying is evidence of a functioning democracy and the courts are still independent.

If that was true then Putin would also be immune to ICC prosecution, so, it doesn't seem to work like that.

> it prosecutes cases only when States do not are unwilling or unable to do so genuinely.

And if you read the last part of the sentence you quoted it should make it pretty clear that it doesn't work like you have interpreted it.

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