Israeli Prime Minister Benjamin Netanyahu made two trips in April without being arrested: one to Hungary and the other to the United States (US). While commentators criticized Hungary for failing to arrest Netanyahu, arguing that as a state party to the International Criminal Court (ICC), it had a duty to do so (the ICC initiated non-compliance proceedings), there has been no similar commentary regarding his trip to the US. This is likely because the US is not a state party to the ICC and is therefore under no obligation to cooperate with the Court and arrest him.
However, in this blog post, I argue that there is a universal obligation to arrest Netanyahu for the commission of grave breaches of international humanitarian law (IHL) against Palestinians. The source of this obligation lies in the grave breaches regime of the Geneva Conventions for 1949. For that purpose, this post is divided into four sections. First, it outlines the obligations under the grave breaches regime. Second, it demonstrates the status of these obligations under contemporary international law. Third, it examines the question of immunities as a potential bar to enforcing this regime. Finally, it applies this legal framework to the case of Netanyahu.
The Grave Breaches Regime:
While the general obligation to exercise universal jurisdiction over international crimes remains controversial in contemporary international law, the grave breaches regime under the Geneva Conventions of 1949 provides an unequivocal basis for this obligation. Specifically, this obligation is set forth in articles 49–50 of the First Geneva Convention, Articles 50–51 of the Second Geneva Convention, articles 129–130 of the Third Geneva Convention and Articles 146–147 of the Fourth Geneva Convention (article 85 of the Additional Protocol as well; however, further reference to it is omitted due to its contested status which cannot be addressed within the word limit). These articles were phrased in identical terms as follows:
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘ prima facie ‘ case……
Accordingly, the grave breaches regime imposes two obligations on each High Contracting Party: (1) to domestically penalize grave breaches of IHL; and (2) to search for alleged perpetrators, by necessary implication arrest them when present on the territory of the state, and prosecute them before national courts (Jean S. Pictet, IV Commentary, p.593). The focus of this blog post is the second obligation, which is considered an embodiment of the iudicare limb of the obligation aut dedere aut iudicare; extradition under the grave breaches regime is not an obligation but rather a matter to be applied at the discretion of a State (see here).
While the aforementioned articles explicitly state only that the obligation to search for, arrest, and prosecute perpetrators of grave breaches of IHL applies regardless of the perpetrator’s nationality, it is widely accepted—based upon the ordinary meaning of the provisions, the relevant travaux préparatoires, and subsequent practice—that this obligation also applies regardless of the place where the crime was committed (see here, here, and here).
Two further points warrants emphasis regarding the grave breaches regime. Firstly, the obligation to arrest arises with respect only to grave breaches of IHL, as distinguished from serious violations of IHL. Grave breaches under the Geneva Conventions are identified (with some variations to meet the special aims of each convention) as any of the following acts, if committed against persons or property protected by the Conventions:
a) wilful killing,
b) torture or inhuman treatment, including biological experiments,
c) wilfully causing great suffering or serious injury to body or health,
d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,
e) compelling a protected person to serve in the forces of the hostile Power or wilfully depriving a protected person of the rights of fair and regular trial,
f) unlawful deportation or transfer or unlawful confinement of a protected person,
g) taking of hostages.
The second point to emphasize is that while the grave breaches regime is acceptedly applied to international armed conflicts, several scholars have argued that it applies similarly to non-international armed conflicts, a debate I will not discuss here given the word limit and because the crimes committed by Netanyahu and Gallant against the civilian population in Palestine, more specifically civilians in Gaza, are widely accepted to be committed in the context of an international armed conflict (see Pre-trial Chamber I decision on arrest warrants, and further here and here).
After providing this overview about the grave breaches regime and the ensuing obligation to arrest, the next section will demonstrate the peremptory status of this obligation.
The peremptory status of the duty to arrest:
In this section, I argue that the obligation to arrest perpetrators of grave breaches of IHL is jus cogens under the theory of ‘consequential jus cogens’, according to which the effects and consequences of jus cogens norms are themselves peremptory.
In my article on Revisiting the Responsibility not to Veto under the Theory of ‘Consequential Jus Cogens’, I demonstrated that the theory of ‘consequential jus cogens’ is an application of the maxim accessorium sequitur principale (an accessory follows the nature of its principal), which is a general principle of international law. This maxim, when applied in the field of jus cogens, plays an:
interpretative role in the process of the determination of the opinio juris cogentis of States regarding a specific norm. Therefore, States’ acceptance and recognition of a specific norm as an accessory norm to peremptory norms shall be interpreted, in accordance with the maxim, to encompass their acceptance and recognition that this accessory norm acquires the same normative value…
Having said so, the theory of ‘consequential jus cogens’ is not applied unconditionally. In my article, I elaborated on the necessary conditions for the application of this theory to prevent the concept of jus cogens becoming ‘the epicentre of unlimited series of positive obligations drawn from the concept itself and imposed upon states without ascertaining their will’ (Kolb, Peremptory International law, p.111). Those conditions could be summarized as follows:
a) The legal effect in question shall be a positive general rule of international law.
b) The consequential relationship between the jus cogens norm and the legal effect in question shall be recognized by States.
Prior to establishing that those conditions are met regarding the obligation to arrest under the grave breaches regime, one must first demonstrate that grave breaches of IHL are considered jus cogens.
Although the ICJ has not ruled explicitly on the peremptory status of IHL rules, it stated in its advisory opinion on the Threat or Use of Nuclear Weapons (1996) that certain fundamental rules of IHL ‘are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’(para.79, emphasis added). The ILC on its side has repeatedly listed the basic rules of IHL among the peremptory norms. In light of that, the prohibition of grave breaches of IHL is a fortiori a jus cogens norm from which no derogation is permitted. The accepted non-derogable nature of the prohibition of grave breaches of IHL is also reflected in States’ universal acceptance of the non-exoneration obligation under the grave breaches regime. This is expressly stipulated in Article 51 of the First convention, Article 52 of the Second Convention, Article 131 of the Third Convention, and Article 148 of the Fourth Convention, stating that:
No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.
Turning to the first condition for applying the theory of ‘consequential jus cogens’ to the obligation to arrest under the grave breaches regime, there is no doubt that this condition is satisfied. The obligation to search, arrest and prosecute perpetrators of grave breaches of IHL is indeed part of existing general international law (de lege lata). This obligation is universally accepted within the four Geneva Conventions, with no reservations made to it.
Having demonstrated that the obligation to arrest is part of general international law and that the prohibition of grave breaches of IHL constitutes a jus cogens norm, along with the accepted accesorial relationship between these two norms, it follows by applying the theory of ‘consequential jus cogens’ that the obligation to arrest is itself a jus cogens obligation.
Immunity: a legal bar to arrest?
While it has been argued that there is an emerging customary international law that state official immunities ratione materiae shall be dismissed in the case of the commission of international crimes, it is contended that no such emerging customary exception exists for state officials’ immunities ratione personae (see here for the ongoing debate at the ILC). However, as I argue in the following paragraphs, there is no need to identify a customary exception to immunities ratione personae in the context of grave breaches of IHL, nor is it necessary to rely on the notion of implicit waiver of immunity as advanced in the Pinochet case. This owes to the peremptory status of the obligation to arrest under the grave breaches regime.
The ICJ in the Jurisdictional Immunities case (2012) has rejected the argument that there exists a conflict between jus cogens norms and the obligation to respect immunities because the procedural character of the obligation to respect immunities, in contrast to the substantive character of jus cogens norms, signifies that the two rules address separate matters (para.93). Nevertheless, the above reasoning does not extend to the peremptory prohibition of grave breaches of IHL. This is because it is universally accepted, as previously discussed, that this prohibition comprises an obligation to exercise universal jurisdiction over its perpetrators. This obligation is not only a procedural obligation, but it is also, as demonstrated above, a jus cogens procedural obligation. Therefore, the obligation to respect immunities of perpetrators of grave breaches of IHL directly conflicts with and derogates from the obligation to arrest and prosecute which is a key mechanism for the exercise of universal jurisdiction. In light of this conflict, the obligation to arrest perpetrators of grave breaches of IHL shall prevail over the obligation to respect immunities. In short, state officials’ immunities do not bar their arrest in such cases.
The Trigger for the Duty to Arrest Netanyahu and Gallant:
As we previously mentioned, the duty to arrest is limited to grave beaches of IHL as listed above. In that context, it is important to note that the ICC did not issue arrest warrants for Netanyahu or Gallant for grave breaches of IHL, despite these being included in the request for arrest warrants by the ICC Prosecutor Karim Khan. The Court, as far as what was expressed, found reasonable grounds to believe that they only bear criminal responsibility for the war crime of starvation as a method of warfare and criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza, which constitute serious violations of IHL.
Having said so, nothing in the text of the grave breaches regime in the Geneva Conventions can be interpreted as conditioning the obligation of all States to prosecute and arrest perpetrators of grave breaches of IHL on a decision by the ICC. The obligation is rather triggered by the existence of allegations of committing or commanding grave breaches of IHL. There is no doubt that such allegations have long existed and still exist for Netanyahu and Gallant as evidenced in numerous reports and testimonies(Just to mention a few here, here, here and here) triggering the universal obligation to arrest and prosecute them.
In conclusion, States do have a peremptory obligation to arrest and prosecute Netanyahu and Gallant for grave breaches of IHL. While it is very anticipated that States would likely decline to implement this obligation, it is precisely this obligation that furnishes the legal justification for declining official visits to its territory and restricting the use of its airspace for flights with Netanyahu and Gallant on board.
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