The International Criminal Court (ICC) Prosecutor faces accusations of violating both ICC regulations and the English Bar’s Code of Conduct in his pursuit of arrest warrants for Benjamin Netanyahu and Yoav Gallant.
UK Lawyers for Israel (UKLFI) has sent a letter to ICC Prosecutor Karim Khan, alleging several breaches of conduct. These include providing misleading information to the Court, failing to update and rectify previously submitted information, and omitting evidence that could exonerate the accused.
UKLFI has indicated that if Khan’s response is deemed unsatisfactory, they will escalate their concerns to both the ICC and the Bar Standards Board (BSB).
On May 20, 2024, the ICC Prosecutor submitted applications seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. While these applications remain confidential, the Prosecutor issued a public statement summarizing the grounds for the warrants.
The primary accusation centers on the alleged starvation of Gaza’s civilian population as a warfare tactic, supposedly implemented through a complete siege under Netanyahu and Gallant’s leadership.
UK Lawyers for Israel (UKLFI) analyzed Khan’s public statement. Their review claims that every aspect of his summary contradicts publicly available information, including significant developments that emerged after May 20, 2024.
Following the Court’s announcement of an August 6, 2024 deadline, numerous NGOs, individuals, and States submitted amicus curiae observations to the Court.
UKLFI, in collaboration with several NGOs including the International Legal Forum (ILF), Simon Wiesenthal Center (SWC), Bnai Brith UK (BBUK), and Jerusalemites’ Initiative (JI), submitted joint observations to the Court. Their submission argued that if the Prosecutor’s public statement accurately reflected the allegations in the applications, these allegations were entirely false. The observations included documented evidence supporting this claim.
Other amici curiae also presented arguments suggesting that the applications seemed to be based on inaccurate information.
On August 23, 2024, the Prosecutor filed his response to these observations. He urged the Court to disregard amici curiae submissions, except those addressing the potential impact of the Oslo Accords on jurisdiction. The Prosecutor requested that the Court promptly issue the arrest warrants based on his May 20, 2024 applications. He maintained that an arrest warrant application is an ex parte procedure in which he alone is entitled to make submissions to the Court.
UKLFI’s letter reminds the Prosecutor of his professional obligations under both ICC and BSB rules. These include acting impartially, seeking truth objectively, not misleading the Court, investigating exonerating matters, and disclosing all evidence that indicates innocence.
These duties are especially crucial in ex parte applications. As noted by English judges, a prosecutor in such cases must anticipate and present potential defense arguments to the judge.
Furthermore, these obligations are ongoing. If new material information emerges after a submission, the Prosecutor must inform the Court promptly.
In this instance, the Prosecutor seems to have based his case on a March 18, 2024 report claiming famine presence and imminence in Gaza. However, on June 4, 2024, after the Prosecutor’s applications, the Famine Review Committee (FRC) for the Integrated Food Security Phase Classification (IPC) published a review. This review found the March 18 report “implausible” due to seriously inadequate information. Despite this, the Prosecutor has requested the Court to issue arrest warrants based on his original applications, disregarding these subsequent findings.
The Israeli government, following the Prosecutor’s applications, published comprehensive manifests detailing goods transferred to Gaza via the Rafah crossing and other Israel-Gaza crossings. These documents contradict the Prosecutor’s claim of a complete siege on Gaza involving extended closures of all crossings.
UKLFI contends that the Prosecutor has failed to fulfill his obligations of candor in both filing and pursuing the arrest warrant applications. They argue he should have brought to the Court’s attention these manifests and other points highlighted in UKLFI’s observations. Furthermore, UKLFI asserts that the Prosecutor and his staff should have independently discovered and presented this information to the Court.
UKLFI Chief Executive, Jonathan Turner, said, “This matters to more than just Mr. Netanyahu and Mr. Gallant. If the prosecutor can have the court issue arrest warrants based on bogus allegations, no one is safe from the risk of arrest and possibly years of imprisonment in The Hague, even if eventually acquitted.”
