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Prospects for the emergence of an obstructionist judge who could tilt the International Criminal Court in Israel’s favour have faded, as a decision on the arrest warrants for Israeli Prime Minister Benjamin Netanyahu nears.
A panel of three judges are assessing the request for arrest warrants against Mr Netanyahu and Defence Minister Yoav Gallant, made by ICC prosecutor Karim Khan in May. They will be reviewing hundreds of pages of documents filed by Mr Khan and submissions of dozens of states and NGOs who intervened in support of Israel or the Palestinian cause.
Legal observers are closely watching for signs that indicate how the new formation of judges Reine Alapini-Gansou, Iulia Motoc and Nicolas Guillou will direct the prosecutor to proceed or reject his request.
Israel submitted two legal challenges objecting to the request last week, days before Mr Netanyahu was due to speak at the UN General Assembly in New York on Thursday. The ICC would not comment on when a decision was to be made.
Mr Khan has accused Israel of using starvation as a method of war, Hamas of abusing hostages and both sides of attacking and killing civilians. Of the three Hamas leaders named in the proceedings, only one, Yahya Sinwar, is confirmed to still be alive.
Whereas Israel’s allies could have previously relied on the dissenting opinion of Hungarian judge Peter Kovacs, whose term at the ICC ended in March, less is known about the direction the new judges could take.
Mr Kovac’s 2021 opinion is often referred to by critics of the arrest warrants. This was the year that the ICC established it had jurisdiction in Palestine, allowing it to proceed with a war crimes case. Although Mr Kovacs agreed with other judges of the ICC's jurisdiction, he believed the territories over which this applies were disputed. Mr Kovacs had also stressed that existing processes, such as the Oslo Accords, risked being “swept away” by an ICC case.
“Judge Kovacs had a very powerful dissenting opinion. The majority of the court (in 2021) was trying to strike a difficult balance, I don't think they got it right,” said Guglielmo Verdirame, a leading international lawyer and member of the House of Lords, speaking at the London think tank Policy Exchange.
“The composition of the panel has changed. The Hungarian judge is no longer there … I wouldn't place a bet,” said Lord Verdirame.
The ICC judges
Beninese judge Ms Alapini-Gansou is the sole judge from the 2021 case remaining in the pretrial chamber and was part of the majority that ruled in favour of Palestine.
Romanian judge Ms Motoc, the presiding judge, joined the ICC in March from the European Court of Human Rights, having served as a UN special rapporteur on human rights in the Democratic Republic of the Congo.
French judge Mr Guillou was also appointed to the ICC in March. He held a senior position at the Special Tribunal for Lebanon, a 15-year investigation that convicted a member of Hezbollah for the assassination of prime minister Rafik Hariri in 2005.
Any objection from the judges is likely to rest on three arguments: that the court lacks jurisdiction, that Israel is capable of investigating the alleged war crimes, and that the alleged war crime of “starvation” will be difficult to prove given the challenges of bringing humanitarian aid into a war zone.
“Not every impediment to human relief operations is a violation of international humanitarian law, even if its wilful,” said Dr Emanuela-Chiara Gillard, senior research fellow at Oxford Institute for Ethics, Law and Armed Conflict.
The “multitude of complex challenges that are constantly evolving” over the delivery of aid in Gaza is likely to weaken allegations of enforced starvation by Israeli politicians. This includes the measures of control such as searches, and imposing specific routes on aid convoys that are permitted by international law.
The uncertainty has reportedly left some of Israel's allies scrambling to find a solution should the arrest warrants be issued. Although British Foreign Secretary David Lammy has said he would co-operate with any decisions from The Hague, there are reported fears from Downing Street that the UK would be asked to sign in support of arrest warrants if they are issued – and that this could cause a backlash from Israel and other British allies.
The UK Prime Minister’s office is said to have been on alert for more than a week about an imminent statement from the ICC that its pretrial chamber has accepted Mr Khan’s request, according to The Guardian.
