Judge Dennis Davis
The ICC

Judge Dennis Davis | The ICC

- Good afternoon, good evening to everybody. The lecture that I am doing this evening or this afternoon deals, of course, with the role of the International Criminal Court. And one of the reasons I said, well, the preeminent reason why I’ve been asked to do this lecture is because last month, the chief prosecutor of the International Criminal Court, Harim Khan, KC, requested arrest warrants for Israeli and Hamas leaders on charges of war crimes and crimes against humanity. As we shall see, these are crimes which can be prosecuted before the International Criminal Court pursuant to the Rome Statute, which we’ll get onto. For Israel, the charges were against Prime Minister Benjamin Netanyahu and Yosef Galant, the defence minister. The charges included starvation of civilians as a method of warfare, willfully causing great suffering, willful, excuse me, killing, intentional attacks against the civilian population, extermination, murder, and persecution. Insofar as Hamas’s Sanwa, sorry, Sinwa, Da'if and Hani are concerned, the charges which were brought by Mr. Khan, KC, included extermination, murder, hostage taking, rape, other acts of sexual violence, torture, and cruel treatment. Now, these again are all charges which were brought pursuant to the Rome Statute. There has, of course, been a considerable furore attached to this because the procedure in terms of the Rome Statute is whilst the prosecutor can seek arrest warrants of these said individuals, prime minister and defence minister, and the various members of Hamas. The truth is that this has to be determined by three members of the judiciary of the International Criminal Court.

There has the furorious cause to a large extent, one by the charges of the prime minister and the deputy, sorry, and the defence minister. And secondly, because of arguments regarding the question of equivalence between the acts of Hamas and the acts of the Israeli Defence Force. Now, I’m not going to talk a lot about that ‘cause that itself is a debate all of its own. And my job this evening is try to explain to you the role of the ICC, what it’s supposed to do, and on what basis these particular charges have been brought and what happens now. I would just say this, there’s a fascinating article in this morning’s Haaretz, invoking Hannah Arendt, in which the author suggests on the one hand, that of course, there’s not necessarily moral equivalence between what, in fact, delete the word necessary, there is no moral equivalence between Hamas did and the Israeli Defence Forces action pursuant to the consequences of October 7. But it is interesting, the extent to which that article invokes Arendt in Haaretz today, to talk about how one must be careful before one dismisses, as it were, various allegations, which may not amount to equivalence and indeed don’t, but nonetheless, may on one or other basis form part of breaches of international law. I don’t want to say more about that at the moment, but I do commend to you the interesting article in Haaretz, as I’ve lectured a lot on Hannah Arendt to members of Lockdown University, and I did find the article intriguing.

Let me, if I may, move on then directly to the topic in hand. And I propose to do this in one of two ways, is to present you the role of the ICC and the context in which it is located. I’ll do that by some lecturing, and I have a video clip, which I’ll probably play about the first six minutes of which explains the ICC in very clear detail for those of you unaware of particularly its role, or not entirely sure. But I’m going ahead of myself. Let me start in 1945. In 1945, of course, we had no really developed international humanitarian law at all. And as we know, the question arose at the Nuremberg trials in so far as how to deal with the atrocities perpetrated by the Nazis concerned. And we know that there was a considerable debate about what the appropriate, if you could call it legal cause of action was going to be on the one hand. And those of you who’ve read “East West Street” would know this because of that wonderful book by Philippe Sands. And if I may say in parenthesis, there was a great lecture, which Philippe Sands did this year on this particular topic, which I certainly found instructive and which you can find on YouTube. The debate, of course, between Hirsch Laterpacht and Rafael Lemkin, both who came from the same city of Lvov. And as you know, or if you’ve read the book, Laterpacht pressed the point about the fact that the Nazis should be charged in so far as crimes against humanity were concerned. At that stage, it was a novel concept of international law.

And what Laterpacht pushed was the notion that international law should focus on the wellbeing of every individual human being. And as the Nazis had in a sense treated millions upon millions of people, including 6 million Jews and all sorts of other groups, including gipsies, et cetera, in a manner in which they did not equate in the perverse brutal way of the Nazis to being human beings, there were crimes against humanity for which they had to be held accountable. Lemkin, on the other hand, took the view that it wasn’t so much that the individual human being was the focus of intention, the focus on why was it that people got targeted by the Nazis? And they were targeted by the Nazis and brutally killed by the Nazis because they were targeted as part of a group. It was the group rather than the individual, which was absolutely crucial to Lemkin’s analysis. Lauterbach warned that this would, that if we went against crimes against humanity and for crimes of genocide, this would replace the tyranny of the state was the tyranny of the group. And he suggested very strongly that law should be concentrated in the sanctity and dignity of each individual human being and the breaches thereof would be able to sustain his advocacy of crimes against humanity. It was, and I’m truncating a very complex debate into very simple terms simply 'cause there’s quite a lot to get through. It was this particular view that held sway, particularly with Robert Jackson, the chief prosecutor at Nuremberg who had come off from being an associate justice of the United States Supreme Court in order to prosecute the Nazi criminals. What is interesting is that one of the reasons why in fact the United States of America in particular were adverse to the Lemkin conception of crimes against humanity was because this whole group of Southern senators saw the idea of the group as being the central cause of action which would sustain a crime of genocide.

They were concerned about the ghastly treatment which would be inflicted upon African-Americans in the South of the United States of America and were very, very vehemently opposed to this particular idea and understandably as a result of their persuasion and other considerations are crimes against humanity was the central focus of the Nuremberg trials. Might I also say, if I may, that I’ve just been watching with Claudette, it’s been around for some while, some of you might watch this, a very, very interesting new documentary on the whole Nazi saga from 1932, in fact earlier the rise of Hitler on Netflix which focuses attention on many of these issues including as it were the rise of international human rights or pursuant to this, all I think motivated by reflections from that book by William Shira, “The Rise and Fall of Nazi Germany.” Really, if you haven’t watched this Netflix series, it’s well worth watching. But the point I wanted to make was that therefore in 1945, there were no established international conventions in regard to international humanitarian law. And then a couple of things happened. In 1949, Limpkin’s conception of genocide was incorporated into national law. There was one aspect about that that I do want to draw your attention to.

That Limpkin’s idea was that if, for example, there were three groups in a town, group A, group B, and group C, and group A and group B ganged up as it were to kill group C, that would constitute genocide. The state who signed onto the genocide convention were particularly concerned about the width of this conception and they inserted this concept of special intention. That is to prove intention to destroy a group in whole or in part became central to the genocide convention and remains to this day an absolutely central feature of the genocide convention. Now, in most cases, those who are intent on committing genocide don’t generally leave pieces of paper or emails around. And so to a large degree, one has to, the court has to glean the concept of specific intention from a reasonable inference to be drawn from a pattern of behaviour. In fact, it must be the clear inference that has to be drawn from the pattern of behaviour in order to sustain the concept of genocide, which means it’s a very high threshold. And I want to make one point about that just in a moment, if I may, about the ICJ case, even though that’s only indirectly the topic of our conversation. The point, however, is that after, at a parallel moment to the genocide convention came two other components. Firstly, there were a series of Geneva conventions which are very important now coming out in 1949. And of course, in 1948, the United Nations Declaration of Human Rights, which were the key documents which fashioned the basis of international humanitarian law and that which we are going to talk about a little bit this evening.

Very little happened until in 1993 and 1994, we got the breakup of Yugoslavia and the atrocities that occurred in so far as that was concerned. And roughly at the same time, we had the quite clear and obvious genocidal actions in Rwanda. These both gave rise to special resolutions of the United Nations, special tribunals were set up, statutes were incorporated to empower these tribunals. And it was here for the first time that in a sort of statutory framework, as opposed to the incohate framework which had applied at Nuremberg where it was being developed for the first time, we find in international law, the statement and the specifics of crimes against humanity and war crimes. And that was the beginning. And then in July of 1998, we have the Rome Statute that was adopted and which has given rise as it were to the Hague-based International Criminal Court in which 124 members signed on to the Rome Statute. Significantly, a number of countries did not do so in so far as this is concerned, including China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey have never signed onto it. Egypt, Iran, Israel, Russia, Sudan and Syria have also never ratified this particular convention. And a couple of countries have actually left the convention Burundi in 2017 and the Philippines in 2090.

So by the way, the idea of having a general convention such as the Convention Against Genocide for Crimes Against Humanity has been proposed. It’s never got out of the United Nations and it’s not therefore part of international law. So where does that leave us? That leaves us with the International Criminal Court which was the court created pursuant to the Rome Statute and which therefore has a series of powers. The way, the best way I can teach this perhaps is just to give you the first five or six minutes of the following clip, which hopefully we can play now.

• [Narrator] The International Criminal Court. What exactly is it? What is its role? And is it truly international? Let’s find out. The court began its work in 2003, but its treaty, the Rome Statute, was adopted in July 1998. More than 120 states are party to the Rome Statute, but that doesn’t include the US, Russia, India, Israel, or China. Although this statute was negotiated within the United Nations, the ICC is not actually a part of the UN. It does, however, report annually to the UN General Assembly. It is also separate from other UN initiatives you may have heard of, such as the ICTY or the International Criminal Tribunal for the former Yugoslavia, which was set up to deal with crimes committed during the Balkans conflicts of the 1990s. Located at The Hague in the Netherlands, the ICC is not meant to be a substitute for national courts, but it can intervene when a state is unable or unwilling to investigate and prosecute accused criminals. The court aims to deal with the most serious crimes, genocide, war crimes, crimes against humanity, and the crime of aggression. Let’s take a moment to define these terms. Genocide is when someone has the intent to destroy, in part or in whole, a national, ethnic, racial, or religious group. This can be done through killing, causing serious bodily or mental harm, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. War crimes include grave breaches of the Geneva Conventions and other violations of the laws and customs of armed conflicts committed as part of a plan or policy or on a large scale. It includes murder, mutilation, torture, international attacks on civilians, sexual violence, and creating child soldiers. It even includes deliberate attacks on hospitals and houses of worship.

Then there are crimes against humanity, which are part of a widespread or systematic attack directed against any civilian population, including extermination, enslavement, forcible transfer of a population, forced sterilisation, and apartheid. It occurs as persecution of an identifiable group on political, racial, national, ethnic, cultural, religious, or gender grounds. An example is Bosko Ntaganda, who was convicted by the ICC on 13 counts of war crimes and five counts of crimes against humanity in the Democratic Republic of Congo, including rape, murder, ethnic persecution, and deliberately targeting civilians. He’s been sentenced to 30 years by the court, but is appealing the verdict. And then there’s a crime of aggression. This happens when one state uses armed force to plan, initiate, or execute an act against the sovereignty of another state. So what has the ICC done so far? For a case to begin at the ICC, the office of the prosecutor must determine if there’s enough evidence of crimes of sufficient gravity within the court’s jurisdiction, if there are genuine national proceedings, and if opening an investigation would serve the interests of justice and the victims. The ICC does not prosecute anyone who was under the age of 18 at the time the crime was committed, only prosecutes individuals rather than states or governments, except for the crime of aggression, and the defendant is innocent until proven guilty.

The defendant also has a right to information in a language that he or she fully understands. A case closed without a guilty verdict can be reopened if new evidence is presented. If a case falls outside the jurisdiction of the court, the Security Council needs to refer the case. At the moment, the court has nine preliminary examinations, 13 situations under investigation, 28 cases, and 14 defendants at large. The ICC has indicted or formally charged after conducting an investigation more than 40 people, convicted eight, and acquitted two. Individuals found guilty by the court include Germain Katanga of the DRC and Ahmad al Mahdi of Mali. High-profile cases include Kenyan President Uhuru Kenyatta, ousted Sudanese President Omar al-Bashir, and Laurent and Simone Gbagbo, the former president of the Ivory Coast, and his wife. Then there are defendants whose cases have been closed because of their deaths, like Libya’s former leader Muammar Gaddafi and high-ranking Lord’s Resistance Army commander in Uganda, Raska Lukwiya. The court does not have its own police or enforcement body and has to rely on states to extradite those who are indicted. This can pose a problem, as in the case of Omar al-Bashir. He was charged in 2009 for crimes in Sudan’s Darfur region while he was a sitting head of state. It wasn’t until this February, 11 years later, that the nation’s current rulers agreed to hand him over to the ICC. Had they not agreed to, he still would not face trial. And as of now, they still haven’t extradited him anyway.

There’s also the Trust Fund for Victims that was created within the Rome Statute to implement court-ordered reparations and provide support for victims and their families, but is not officially part of the court itself. It is interesting to note that 10 of the 13 situations under investigation are all from African countries. And all of the 28 cases at the court, some of them now closed, and the 14 defendants at large, are from an African nation, even though international crimes happen all across the globe. The African Union even suggested a mass withdrawal of member African states in 2017 over the disparity. There are now, however, preliminary examinations underway for crimes committed in Colombia, Palestine, Ukraine, the Philippines, and for the UK’s role in the latest Iraq war. And the three non-African situations under investigation concern Georgia, the Rohingya Muslims in Myanmar and Bangladesh, and the current war in Afghanistan. It’s this war in Afghanistan and a look at the situation in Palestine that has upset the United States. In June, U.S. President Donald Trump signed an executive order imposing sanctions on several ICC officials.

• As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority.

• [Narrator] Secretary of State Mike Pompeo officially announced the sanctions on September 2nd against two officials, including ICC Chief Prosecutor Fatou Bensouda, saying the court was using illegitimate attempts to subject Americans to its jurisdiction. The U.N. Secretary General expressed concern and said that the U.N. will continue to closely follow the developments. And Bensouda’s native country of Gambia has urged the U.S. to reverse the sanctions on her and her top aide. Washington’s move comes in opposition to the ICC’s ongoing investigations into crimes committed by U.S. forces in Afghanistan and the court’s preliminary inquiry into Israeli crimes committed in the Palestinian territories. The ICC has called the U.S. sanctions unprecedented and being used as threats and coercive actions against it. The Trump administration has called the investigations illegitimate since the U.S. and Israel have not ratified the Rome Statute. But the statute includes jurisdiction of crimes committed by non-parties on the territory of a state that is party to the statute, which include both Afghanistan and the Palestinian territories. The U.S. had signed the Rome Statute during Bill Clinton’s presidency, though it wasn’t ratified, but it was later revoked by George W. Bush. The ICC faces elections in December for the court’s next prosecutor and six new judges. Most of its attention has so far been in Africa, though it’s starting to reach out to other regions. But there’s still no mention of possible crimes in places like Yemen or Bahrain committed by rich Gulf monarchies. The U.N. has warned that Bahrain’s arbitrary detentions may constitute crimes against humanity. And on September 11th of this year, a U.N. group of experts called on the Security Council to refer the situation in Yemen to the ICC. Is the ICC able to do its job without bigger nations signing on? What other options are available?

• Okay, thank you. So let me just make a number of points to fill in now that we all understand. The court has 18 judges, each from a different country, member country elected by the member states. It’s interesting that in terms of statute, members are appointed in so far as to seek a gender balanced bench. The judiciary has to include representatives of each of the United Nations five regions. The judges are elected to a non-renewable nine-year term. The present two vice presidents are elected from amongst the judges and they handle the administration of the court. Now, let’s ask ourselves, well, what does the court actually have jurisdiction over? And the court has jurisdiction over four categories of crimes. We’ve sort of dealt with that in part. Genocide or the intent to destroy and hold in part a national, ethnic, racial or religious group. Let me pause there to say this. This is the only crime under international humanitarian law that one can go to the international, sorry, the International Court of Justice on. That’s why South Africa went there because Israel is not a member of the Rome Statute. It is however, as it were a member of the ICJ effectively it’s signed on and therefore it has jurisdiction thereof. And that’s why one of the great problems about these cases is that people use genocide and have done so for some a while as the way to get to the ICJ. And we’ve seen cases of Bosnia, Croatia and Gambia all going to the ICJ, National Court of Justice precisely because of that. I’ll come back to genocide in a moment. The second are war crimes, including rave breaches of the laws of war under the Geneva Conventions and serious violations under international criminal, sorry, under international customary law. Torture, taking of hostages, willfully causing great suffering, intentionally attacking civilian populations, attacking undefended civilian property, schools, historical monuments, hospitals, using starvation of civilian populations as a method of warfare or using child soldiers.

Then there are thirdly crimes against humanity or violations committed as part of a large scale attack against any civilian population, including murder, rape, unjust imprisonment, slavery, persecution, torture, or the crime of apartheid. And then finally crimes of aggression where a political or military leader plans or executes the use of armed force by a state against the territorial integrity, sovereignty, or political independence of another state or in any other manner inconsistent with the UN Charter. So four crimes, genocide, war crimes, crimes against humanity, crimes of aggression. Now, before I get onto these a little bit more in detail, let me just say, how does a matter get to the court? Well, there are three possible ways. A member country can refer to the prosecutor a situation arising anywhere, provided it’s within the jurisdiction of the court. And I suspect that’s the way this one, the Israel-Hamas case has got there. United Nations Security Council can refer a situation occurring anywhere in the world. Or with the approval of the pretrial ICC judges, the prosecutor can launch an investigation into a situation on his own. That’s another way in which, of course, Khan KC has tried to do this in this particular case. And we know now that the matter has come before three judges. They’ve got to make the call as to whether the arrest warrants are going to be issued. Once he’s opened the investigation, which he’s done, the prosecutor concludes after, if he concludes after a preliminary investigation that the alleged crimes are of sufficient gravity, he then would ultimately seek to collect evidence and present that evidence to the three judges, the pretrial judges, to confirm whether the case should be brought to trial and whether warrants should be issued. I was hoping that we’d have had a decision about this before I gave this lecture, but alas, that hasn’t happened.

Let me deal, if I may, a little bit more in detail with some of these crimes. Because I suspect that many of you would want to know a few issues, particularly as it pertains to this particular case. In relation to genocide, it’s so much nonsense has been written about this. And certainly in my country, all sorts of allegations have been made that Israel has committed genocide. How is that so? Because it is said the ICJ said so. Well, the ICJ did not say so. Not only did the then presiding judge, the American judge, clarify this on a particular programme, but reading the decisions of the ICJ make that perfectly clear. And one of the reasons for that is what I said to you when I lectured on the ICJ case a little while ago, that at the stage of that point, all that was required of the court was to determine on the basis of provisional measures, whether in fact, some findings should be justified, which would essentially make an order and legitimately against Israel. There was no finding of genocide as such, because as I indicated at the time, the issue of provisional measures, a very low bar, basically saying, well, is there some basis that if on the facts of established, there is a plausible claim, well, then provisional measures should be granted. In other words, it’s a very low threshold. And if you really want to know what happened before the ICJ, may I recommend that you go to the ICJ website, click on the South African Israel case and turn to the four pages that were generated by the German judge Nolte, which are really very instructive, because what he said in finding by the way, in favour of the order, which was granted to South Africa in this case, he said there was no plausible showing of genocidal intent at this particular point.

There was no basis by which to find that Israel had committed acts of genocide. What he said was that invoking a series of statements by prominent Israeli officials, including the prime minister and the defence minister, he said that these particular statements could amount to incitement to genocide and therefore could, if properly proved, form a basis for genocidal intent. But at this stage, there was no evidence that there was genocide per se. However, given the statements that were made, his view was that it was the prudent course of action to vote in favour of some relief granted, which is what happened. And I would recommend that you read paragraph 13 of the Nolte judgement , which makes us absolutely clear. Now, let’s turn to the other crimes, particularly war crimes and crimes against humanity. Now, I want to introduce you, if I may, to a series of concepts of international law, which are very, very important, which are spoken about very often, but loosely within the press and which you need to know. In short, there are three fundamental propositions which should guide any assessment as to whether there are war crimes of the kinds that I have spoken of, that is either under the Geneva Convention or under customary international law, torture, taking of hostages, willfully causing great suffering, intentionally attacking civilian populations, attacking undefended civilian property, schools, historic monuments, hospitals, et cetera, starvation of civilian populations, crimes against humanity, a large-scale attack against civilian populations of the kind that I read out. And the three propositions are these.

And they need to be read within the idea that international humanitarian law does, in fact, recognise that reasonable precautions, reasonable forms of self-defense, reasonable use of force are justified when a country is attacked, but they are permissible only under the narrowest prescribed circumstances. And those circumstances are that there are three fundamental principles which need to be borne in mind, distinction, precaution, and proportionality. Let me repeat, distinction, precaution, and proportionality. The principle of distinction requires parties to an armed conflict to distinguish between civilians and civilian objects on the one hand and combatants and military objectives on the other. It prohibits direct attacks against civilians and the means and methods of warfare that may lead to indiscriminate attacks. And the means and methods of warfare, I repeat, that may lead to indiscriminate attacks. The principle of precaution requires that the parties take all feasible measures to minimise the loss of civilian life and damage to civilian objects, including providing effective advanced warnings to civilian population prior to attack. The principle of proportionality requires that the parties ensure that the expected incidental loss, this incidental loss within the hostilities are such that the objects of the attack or the defence are, as it were, a sufficiently targeted justify the operation in the first place. So you’ve got to have some proportionality between the expected incidental loss of life and civilian damage on the one hand, but they cannot be excessive when compared with the military advantage of that attack.

Should an incident initially governed under the law enforcement paradigm rise to the level of conduct of hostilities, the framework for the use of force continues to apply to citizens who do not directly participate in the hostilities. Obviously, there’s a difference when civilians do participate one way or another in the hostility. So you can see what I’m driving at, that if you take these three particular principles, distinction, precaution, and proportionality, they govern these particular crimes. Now, obviously within the case of the Israel-Gaza conflict, a point which doubtless will be raised and rightly said is how does international law cope with the problem of a terrorist organisation hiding within the, as it were, civilian areas, such as that therefore they’re using civilians as fields. And I don’t think there’s a comprehensive answer to that. Obviously, the case depends on the facts. It may well be that many of the allegations which are made against the IDF fall directly within the principles of proportionality et al, distinction and precaution. But there are clear cases where that may not be so. It’s all very well saying you made a mistake when you blow up a series of trucks which are to provide and give aid. But that’s a question of litigation. That’s not a question of not finding guilt.

So I think it’s a very complex situation. And I have to say, as I said the previous time, one has to try, and it’s extraordinarily difficult to do this, as to how to distinguish between saying, what do you want us to do when the attacks launched against us, which would trigger self-defense, are located within areas where civilians are used as fields and other such cases. And all I can say is that you can’t give one answer to that. You’ve got to, as it were, seek to apply that to the particular facts of the case, which makes this particular case extraordinarily difficult. It may well be, it may well be that, I have no doubt, by the way, sorry, that in relation to Hamas, they are guilty of genocide. I have little doubt that they had the intent to destroy in whole, if they were able to do so, the entire Israeli population, and would have done so if they had had half a chance. In relation to Israel, I think there you’d have to argue if you were a lawyer trying to do this as objectively as possible, that the facts would have to determine most of the outcomes, although the question of the inability to get sufficient aid into Gaza itself does render the matter fairly problematic, to be mildly, from an international point of view. But you’re going to have, in this case, there’s no one answer. And my job isn’t to give one. It is essentially to try to tell you why there are problems one way or the other with these cases. What I wanted to do, if I may, because this raises the further point about how does, how would it be that if arrest warrants are issued against Mr. Netanyahu and Mr. Golan, how does that work? Apart from the fact that at least they sort of are there living in Israel and they travel. As we know, Mr. Netanyahu will be travelling to address the joint sitting of Congress. But of course, we also know that Mr. Netanyahu will go to the United States of America, where as we well know, they are not party to the ICC and most certainly would have no difficulty in resisting any possibility of arresting him. But there is, it’s interesting.

And I raise this because it’s kind of like, what’s the word I’m seeking to use? I suppose it reflects something really remarkable about the South African attitude to all of this. Why do I say that? Because some years ago, Omar al-Bashir, who was wanted by the International Criminal Court for five crimes of crimes against humanity, two counts of war crimes and three crimes, counts of genocide, initially charged in 2009, followed by more charges in 2010. He arrived in South Africa. He arrived in South Africa for the 25th African Union Summit in June, 2015. And previously, South Africa had warned that they were party to the Rome Statute and Article 86 thereof obliged all state parties to cooperate fully with the court in his investigation and prosecution of crimes within the jurisdiction of the court. And in 2009, a chief magistrate had what we call in law domesticated the ICC arrest warrant, making it a South African arrest warrant if Omar al-Bashir came into South Africa. In 2009, he was warned informally not to come to South Africa and he didn’t. But in 2015, he did. He came to the 25th African University Summit aware of the fact that he was visiting South Africa. The South African Litigation Centre, a very fine non-governmental organisation, wrote to the South African government a month before the summit, reminding them of their obligations in terms of Article 86 of the Rome Statute and a domestic South African Act called the Implementation Act, which made it absolutely clear that South Africa had committed itself to the Rome Statute.

Fact of the matter was that nothing, they did nothing, Omar al-Bashir came to South Africa and the litigation centre then commendably approached the Gauteng High Court in order to get an order from the court, ordering the court to prohibit Omar al-Bashir from leaving South Africa until a final order was made in order to prevent him from doing so and having him arrested. Astonishingly, during the course of the hearing, State Council asked for an adjournment. It was apparently at some point during this process, Omar al-Bashir left South Africa, quite obviously with the concurrence of the South African government, despite the fact that the court had repeatedly asked State Council prior to handing down its judgement if he was still in South Africa. The High Court said the following, and it’s worth repeating it to you. It must be stated that the Rome Statute and Implementation Statute is such that South Africa is bound to implement it. By way of enactment, the legislature complied with its obligations as a state party to the Rome Statute to take measures at national level and to ensure national criminal jurisdiction over the crimes set in the Rome Statute. This is clear from the Long Title Implementation Act and the preamble. And the court, therefore, then also demanded an explanatory affidavit as to how Omar al-Bashir was allowed to leave the country. The matter went on appeal to the Supreme Court of Appeal. One of our finest judges in South Africa, retired now, one of our finest judges at the time, Judge Malcolm Wallace, said the following. He said that the affidavit of the state fails to explain how a head of state using a military airbase reserved for the use of dignitaries could possibly have left the country unobserved.

The Director General of Foreign Affairs said President Omar al-Bashir’s passport was not amongst those shown to officials of his department, but is an explanation. This is riseable. Some senior officials representing government must have been aware of President al-Bashir’s movements and his departure, the possibility which would be mooted in the press. In these circumstances, assurances that he was still in the country given to the court at the commencement and during the course of argument were false. There seems to be only two possibilities. Either the representative of the government set out to mislead the court or misled counsel to giving instructions or the representative of the council misled the court. Whichever is the true explanation, a matter no doubt being investigated by the appropriate authorities, it wasn’t, I might add. It was disgraceful conduct. Extraordinary that in South Africa, therefore, at the time of Omar al-Bashir and Sudan, we were obliged, as are all countries which have signed onto the Rome Statute to arrest someone against whom an arrest warrant has been issued pursuant to Article 86. We did not do that. We basically flagrantly violated our international law obligations. And might I say that even if you look at today in Sudan, hundreds of thousands of people have died in that particular conflict at the moment and there’s not a peep from almost anybody in relation to the atrocities being conducted in that part of the world. That is not to deflect attention away from the terrible tragedies unfolding in the Middle East at present, but it is to certainly cause into some significant question, who in fact is committed to international humanitarian law and for what particular reasons?

The fact of the matter is therefore that in relation to this case, we have to wait until the ICC three judges actually decide whether to issue warrants or not. Assuming that they do, the obligation is in any particular country, which is a signatory to the Rome Statute terms of the Article 86 to arrest the persons who are the subject of the warrants. As you well know, there has been a warrant issued for Vladimir Putin because the ICC has gone to, has in fact issued these procedures against Putin for crimes against humanity and war crimes. As we know, very little has been done in regard to that, which perhaps profoundly raises significant problems as to the weaknesses of international human rights law. But the reality is that where we stand at the moment is that in relation to Israel-Gaza, the case continues. As we know, over the last day or two, there’ve been reports from a panel which was chaired by a South African judge with respect to whether both Israel and Hamas have committed these forms of crimes. Certainly in the latter part of 2023, we know that the findings were that they were.

And so it’s extraordinarily difficult to really unpick all of this, save to say that in many ways, this is going to be an ideological statement insofar as Israel or Hamas are concerned, because quite frankly, I can’t see the defence minister or the prime minister actually being arrested. I suspect they will be careful not to go to certain countries. They go to the United States of America, which is not a signatory, as I’ve said, they won’t be arrested. And quite frankly, no one knows where these Hamas people are as such. And certainly the idea of them travelling in open way to various parts of the country and being arrested is certainly laughable. So therefore, this is very much more a case of as it were discourse statement, et cetera, rather than legal consequences. But the legal consequences are that pursuant to Article 86, a country which is a signatory would have to arrest any of these people were they to land in their country. Let me turn therefore, to questions.

Q&A and Comments:

The article, yes, sorry, I should have given that and I was, I’m getting slightly iberbottled. It was published on the 29th of May, 2024. By Robert Zaretsky, Z-A-R-E-T-S-K-Y, Z-A-R-E-T-S-K-Y. Arrest of the 29th of May, 2024, if you Google it, it’s called how an arrest would respond to Israel being accused of crimes against humanity.

I was then asked about the Netflix miniseries, which is called “Hitler and the Nazi’s Evil on Trial.” No, the USA is not a signatory to the ICC.

Q: Harris v. Green, what happens when places of worship, schools and hospitals are exploited by groups to commit acts of aggression? Can slavery occur?

A: I think I’ve already answered that Harris. The answer is that I don’t think a national law has actually thought this through properly. And that’s why the best I can do as a lawyer is saying it really depends on the fact of the case. So I would have thought that if you’ve got real evidence, which I assume in certain cases IDF have, be very difficult to argue against that. Yes, thank you,

Monty. Monty says, “Henry Kissinger, "you can’t judge the morality of the state "in the same way you judge the morality of an individual.” Yes, I think that’s probably right on the one hand, but the fact is, and in fact, that’s an interesting point you make, because the whole purpose of the ICJ is to judge states. The whole purpose of the ICC in relation to people is to judge individuals. So your distinction is important, may not be what you expected it to be, but it’s important in that sense, that that’s what the ICJ, sorry, the ICJ is state-orientated. The Reims Statute is individual. Barry asks who finances. It’s apparently, I understand that its annual budget for 2024 was something in the region of about $190 million. The vast majority comes from member states determined by the same method that the United Nations uses to assess Jews, which roughly correspond to the size of each member’s economy. That’s how they’re funded.

Q: Is the United Nations Security Council agencies subject to the ICC in answering for their complicity?

A: No. As I said, the ICJ deals with states and individuals through the ICC, not at all. The distinction of the ICC and the ICJ, Bob, is the ICJ, of course, is a general court which tries states on a whole range of issues, not necessarily only, of course, for genocide, all sorts of other state issues are dealt with. I mean, one of the most famous ones, of course, insofar as we in South Africa was concerned, was the question of the legality of the mandate of Southwest Africa and whether South Africa was entitled to occupy it. They have jurisdiction to deal with genocide insofar as states are concerned. The Rome Statute, as I said, expanded international humanitarian law to the four categories of crimes that were concerned. And they, as it were, can try individuals, and that’s what they’ve done. And you’ll recall me mentioning the Rwanda and the Yugoslavian cases, which is, of course, precisely what happened there. The problem about, honey, they don’t have the authority. That’s why Article 86 is so important, because they rely on the states themselves. And I should just make one other point, which I haven’t made, which is really important, and I apologise for not making it. There is also the concept of subsidiarity, which means that if a country itself deals with recalcitrant criminals, then, in fact, that takes precedence. So assuming for the purpose of debate, and I know this might horrify some of you, but I’m just giving it as a hypothetical, please don’t jump down my throat, that the Attorney General of Israel decided to prosecute Mr. Netanyahu, Mr. Gallant, for perpetrating what she considered to be breaches of Israeli law, which in some ways would essentially approximate to some of these crimes, then, in fact, the ICC would probably lose its jurisdiction. Thank you, Monty. I shall listen to Ida Harony and Dan Shaftan, the real story.

Q: Ralph, are you using proportionality as a parameter to suggest there are independently confirmed numbers?

A: As we know, there have been valid questions of the accuracy of numbers claimed by the Gaza Health Authority, as well as attribution of some deaths to the IDF, particularly when explosive devices are stored amongst. I agree, and that is why I’ve said, Ralph, that I can’t, it would be really ridiculous of me and of anybody else to precisely opine as to the guilt on all of these cases. I do think there are cases which are easier than others. I think if you cut off water and electricity and food supplies, you are asking for serious trouble in relation to these crimes. On the other hand, if you say to me, some of these particular deaths took place within the context that I’ve indicated, well, then the facts will have to speak for themselves. And you did right. As we know as we lawyers, cases are factually orientated, and that’s the only answer one can give. Well, I see many who listen to the profurgy instead of trying to be objective, focus on points in favour of IDF. I’ve tried to be, but I don’t think it’s helpful to be biassed. I think you must judge for yourself as to where to stand. As I’ve said, I think there are massive indications of problems in the law, but sorry, I’m trying to act as a lawyer and allow you to judge your own conclusions accordingly.

Thank you, Jerry. That’s what I was trying to do, was to be as objective as possible, 'cause I think then we can have a serious debate about this. Let me be quite blunt. As an international lawyer and as someone who really treasures international humanitarian law, I’m not going to justify anybody’s acts which breach international human rights law, even if they’re of my own. I’m not suggesting for one moment that the proof has been adequate. And we don’t know that 'cause of the fog of war, but we may learn in future and we should be careful therefore to try to be as objective as possible until we get the facts. Now, Hamas people are in Qatar, but they aren’t a signatory, Harris. I’m sorry to say so.

Monica asks, “South Africa’s attitude towards Israel.” I’ve tried to explain this before, Monica. I find it inexplicable in part. There was part of it which unquestionably was designed to curry voters amongst the Muslim community, particularly in the Western Cape where there’s a large Muslim community in favour of the ANC. That failed hopelessly. In fact, the Democratic Alliance who’d been attacked for certainly not being anti-Israel did not lose votes in this regard. It did lose some votes, but to the party called the Patriotic Alliance who were more pro-Israel than the DA, the Democratic Alliance. So I think the broader answer is that South Africa has tried to position itself as was evident from its BRICS conference as anti the West and in favour of Russia, China and that sort of block which would possibly include Iran. And therefore it has a foreign policy which has deviated radically from that which Mr. Mandela set up, which was supposed to be orientated towards human rights and the commitment to the human rights enshrined in our constitution and that we were supposed to evaluate all conduct wherever it may be, whether it’d be an American, whether it’d be Israeli, whether it’d be anywhere else in the world, certainly particularly Iran and Sudan, horrendous acts there all based on the constitution, but unfortunately no longer. And that seems to be the better explanation for the question.

I think I have tried to explain the difference to the ICC, ICJ as I say, at the International Court of Justice as a world court if you wish, the International Criminal Court was set up specifically to enforce the Rome Statute for all the issues I’ve indicated.

Well, I think the answer is Barbara, that if you shut off the borders and you do not allow food in to a country and it can be shown that the starvation is at least in significant part caused by that, yes, you are in trouble. Thank you, Barbara.

And thank you, Jerry. Yeah, Sorrell, I just want to say this about Aron Barak. I think he’s a great hero. I think what he did at the International Court of Justice was in the greatest traditions of an independent judge and the way he dealt with it. And he is one of my judicial heroes. Well, Monty, the answer is the ANC desperate for money, Iran helped them. We have not yet got proof of that. If you’ve got some proof, please send it to me. And that seems to be it.

Thank you very much for all of your questions.