International Law & the ICC: Structure, Jurisdiction, and the Putin / Netanyahu Arrest Warrants

Definition & Scope of International Law (IL)

• Body of rules & norms that regulate:

  • Interactions between sovereign nation-states (not Australian “states”).

  • Growing set of relationships between states and international organisations (IOs) or between IOs themselves.

  • Example: UN agencies distributing aid in Gaza until suspended by Israel.

  • Principal subjects today: sovereign states and IOs. International Law, unlike domestic law, primarily governs the external relations and conduct of states, though its scope has expanded significantly to include non-state actors like IOs and, indirectly, even individuals through mechanisms like the International Criminal Court.

Domestic Law vs. International Law – Key Contrasts

• Source of Law

  • Domestic: statutes made by a parliament; easily located & interpreted. Laws are typically codified and hierarchical.

  • IL: no world-parliament. There is no single, centralized legislative body comparable to a national parliament.

  • UN General Assembly (UNGA) – $194$ member states, meets Sept–Dec, can only make recommendations (e.g., resolutions on human rights or self-determination), which are generally not legally binding.

  • UN Security Council (UNSC) – can pass binding resolutions (e.g., imposing sanctions or authorizing force) under Chapter VII of the UN Charter, but is not a legislature. Its binding power is limited to specific threats to international peace and security.

  • Laws instead emerge from state consent (treaties) or customary practice. This decentralised origin is a fundamental difference.

• Jurisdiction & Enforcement

  • Domestic courts = compulsory jurisdiction; individuals cannot “opt out.” The state holds a monopoly on legitimate force to ensure compliance.

  • IL courts/tribunals – states may opt in/out; limited coercive power; critics call IL “morality masquerading as law.” States generally must agree to be bound by an international court's jurisdiction for a case to proceed. This consent can be given ad hoc, via treaty, or through declarations recognizing compulsory jurisdiction.

  • Enforcement Gap viewed as the central weakness that fuels scepticism among domestic lawyers, as there is no overarching international police force or prison system to uniformly enforce judgments.

Why States Still Obey IL

Despite the enforcement challenges, states generally comply with international law due to several powerful incentives:

• Reciprocity – cooperation in trade, aviation, environmental protection, etc. (e.g., global overflight system where states allow each other's aircraft to pass through their airspace based on mutual agreement). States comply because they expect other states to comply in return, fostering stability and predictability in international relations.

• Fear of disorder/anarchy – memory of World War II ($\approx 80\,\text{million}$ deaths; $20\,\text{million}$ in USSR) & nuclear annihilation (Russia’s arsenal could destroy Earth $18$ \times; USA $16$ \times). The legal framework provides a crucial structure to prevent a return to a state of nature where conflict is rampant. The shared interest in global stability often outweighs individual state interests in non-compliance.

• Climate-change existential threat – need collective action. Issues like climate change, pandemics, and terrorism inherently require global cooperation, pushing states towards adherence to international legal norms and agreements.

• Reputation/Isolation – risk of becoming a pariah (analogy: apartheid South Africa, which faced severe international sanctions and isolation due to its discriminatory policies; concerns inside Israel today regarding its actions in Gaza and the West Bank). A state’s international standing and ability to engage in diplomatic, economic, and political relations are heavily influenced by its perceived respect for international law.

• Punishment – international tribunals & sanctions. While not always immediate or universal, mechanisms like economic sanctions (e.g., those imposed on Russia), arms embargoes, or referrals to international criminal courts can deter violations and pressure states to comply.

Two Primary Sources of IL

1. Treaties (largest volume)

   • Umbrella term covering conventions, covenants, charters, protocols, acts, and agreements.

   • Binding if parties intended to create legal obligations. Treaties are formal written agreements between states that are legally binding upon ratification, based on the principle of pacta sunt servanda (agreements must be kept).

   • Spectrum examples:

     • Bilateral – Australia/Japan Migratory Bird Agreement (narrow scope, 2 parties, addressing specific environmental cooperation).

     • Multilateral – UN Charter (negotiated $1945$; $194$ parties; creates GA, UNSC, ECOSOC, Trusteeship C, ICJ, etc., establishing the foundational framework of the United Nations system).

2. Customary International Law (CIL)

   • Unwritten; derived from consistent state practice (a general and consistent practice among states over time) + opinio juris (the belief that such practice is rendered obligatory by the existence of a rule of law, i.e., states act that way because they feel legally bound to do so).

   • ICJ frequently decides solely on CIL when no treaty applies. CIL is universally binding on all states, including those that did not explicitly consent, unless a state has persistently objected to the formation of the specific custom from its inception.

International Criminal Court (ICC)

• First permanent international criminal tribunal; Rome Statute (RS) $1998$, entered into force $2002$. This marked a significant step in establishing a standing international court to prosecute individuals for the most serious international crimes.

• Predecessors: Nuremberg & Tokyo tribunals (post-WWII), ICTY (for former Yugoslavia), ICTR (for Rwanda), Special Court for Sierra Leone, ECCC (Cambodia), STL (Lebanon), Kosovo Tribunal – all ad hoc (established for specific conflicts or purposes and disbanded thereafter).

• Composition & Governance

  • $18$ judges; elected for $9$-year terms with staggered $1/3$ replacements every $3$ yrs to ensure continuity and expertise.

  • Prosecutor elected by Assembly of States Parties (ASP). The Prosecutor is independent and leads investigations and prosecutions.

  • ASP: $125$ states ($\approx 2/3$ of world). This body oversees the management and budget of the ICC, elects judges and the prosecutor, and considers amendments to the Rome Statute.

  • Non-parties include USA, China, Russia, most Middle East (except Jordan), much of E. Europe & SE Asia. These states often have concerns about national sovereignty or the ICC's jurisdiction.

  • Almost all Africa, Latin America, W. Europe, Australia, Canada, NZ, Fiji, Samoa are parties, reflecting widespread support for international justice in these regions.

  • Current prosecutor: Karim Khan KC (noted sexual-harassment allegation pending – he has stepped aside while investigated, demonstrating internal accountability mechanisms).

Rome Statute Crimes

The ICC has jurisdiction over the most serious crimes of concern to the international community as a whole:

1. Genocide – Art 6. Defined by acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

2. Crimes against Humanity – Art 7. Defined as widespread or systematic attacks directed against any civilian population, with knowledge of the attack.

3. War Crimes – Art 8 (speaker is ICC’s Special Adviser on War Crimes). Grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and non-international armed conflict.

4. Crime of Aggression – Art 8 bis (added $2010$, Kampala). Defined as the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

   • Jurisdictional regime differs: both the aggressor & victim states must be RS parties; hence the ICC cannot prosecute Russia’s invasion of Ukraine for aggression (Russia is not a party, and Ukraine, though it has accepted ad hoc jurisdiction for crimes, is not a party to the Crime of Aggression protocol in the same way).

“Triggering Mechanisms” (Initiation of ICC Investigations)

Investigations can be initiated through three distinct pathways:

1. State-Party Referral – any RS state may refer a “situation” where one or more crimes within the jurisdiction of the Court appear to have been committed.

2. UNSC Referral – binding on all states; overrides need for state consent. This mechanism allows the UN Security Council (even if a state is not an RS party) to refer situations to the ICC under Chapter VII of the UN Charter, making the ICC's jurisdiction compulsory for that situation (used for Sudan/Darfur & Libya).

3. Prosecutor’s proprio motu motion – requires authorisation by a 3-judge Pre-Trial Chamber. The Prosecutor can initiate an investigation on their own initiative, based on reliable information, but must seek judicial approval from the Pre-Trial Chamber to proceed.

Two Additional Preconditions (for 1 & 3)

• State Consent – at least one relevant state must consent (territorial state or state of nationality). This means either the state on whose territory the crimes were committed or the state of which the alleged perpetrator is a national must be an RS party or give ad hoc consent.

  • If a state is already an RS party, consent is deemed, meaning their ratification of the Rome Statute implies consent to jurisdiction over crimes committed on their territory or by their nationals.

  • Non-party states may give ad hoc consent for specific situations, allowing the ICC to investigate crimes within their territory for a particular period.

• Complementarity – ICC acts only when national courts are unwilling or genuinely unable to investigate/prosecute. This is a foundational principle of the ICC, meaning it respects national judicial systems and only intervenes as a court of last resort to prevent impunity when national systems are ineffective or non-existent. It’s not intended to replace national justice systems but to complement them.

  • ICC is a court of last resort.

Illustrative Anecdote on “Opting Out” (Domestic vs IL)

• Tasmanian “sovereign citizen” Daniel Gandini: claimed to be “intergalactic emissary” & rejected Supreme Court jurisdiction after assaulting police; domestic court ignored claim – this contrasts sharply with ICC’s consent-driven model, highlighting the fundamental difference between the compulsory nature of domestic law and the consensual nature of international law.

Current Major Situations

1 – Russia / Ukraine

• Jurisdictional Basis: Ukraine accepted ICC jurisdiction (although not an RS party until recently) in $2014$ and $2015$ for crimes committed on its territory since $2013$. This means the ICC can try crimes on Ukrainian territory & by Ukrainian nationals abroad; Russia remains non-party and does not recognize the ICC's jurisdiction.

• First Arrest Warrants (Mar 2023)

  • Vladimir Putin (President of Russia).

  • Maria Lvova-Belova (Commissioner for Children’s Rights for the President of the Russian Federation).

  • Charge: War crime of unlawful deportation/transfer of $\approx 20\,000$ Ukrainian children from occupied regions of Ukraine to the Russian Federation; evidence – policy document bearing both signatures, giving strong “linkage” proof that directly implicates them in the alleged policy.

• Additional Warrants (Mar 2024)

  • Gen Sergei Kobylash (commander, Long-Range Aviation of the Russian Aerospace Forces) & Adm Viktor Sokolov (commander, Black Sea Fleet).

  • Charges:

  • Art 8 (2)(b)(ii): Intentionally directing attacks at civilian objects (e.g., energy infrastructure like power plants, heating facilities).

  • Art 8 (2)(b)(iv): Disproportionate attacks (massive bombardment of Ukraine’s energy grid during winters, causing excessive civilian harm relative to military advantage).

  • Further warrants reportedly for other senior Russian officers are anticipated as investigations continue.

2 – Israel / Palestine (Gaza)

• Jurisdictional Basis: Palestine acceded to RS in $2015$, which granted ICC jurisdiction over Gaza/West Bank (including East Jerusalem) and over Palestinian nationals worldwide; Israel is non-party and disputes the ICC's jurisdiction over these territories.

• May 2024 Application for Arrest Warrants (Prosecutor)

  • Benjamin Netanyahu (Prime Minister of Israel).

  • Yoav Gallant (former Defence Minister of Israel).

  • Counts include:

  • Starvation as a method of warfare – Art 8 (2)(b)(xxv): depriving civilians of objects indispensable to their survival & impeding relief supplies. The prosecutor alleges that the Israeli authorities intentionally caused suffering and death by imposing a total siege on Gaza, including cutting off electricity, fuel, and water, and impeding humanitarian aid.

  • Other inhumane acts / collective punishment (implicit) and various other charges related to the treatment of the civilian population.

  • Hostage-taking allegations (against Hamas leadership) examined concurrently. This simultaneous pursuit of warrants against both Israeli and Hamas leaders underscores the principle that all parties to a conflict are bound by international humanitarian law.

  • Hamas Leadership Warrants (names per lecturer, with crucial updates):

  • “Hamir” (Hamas leader based in Qatar) – reportedly assassinated in Tehran via remote-detonated bomb (likely referring to Saleh al-Arouri, though specific details may vary).

  • Yahya Sinwar – confirmed killed in Gaza (via missile + drone strike recorded on video).

  • Mohammed Deif (military commander) – reportedly killed, though his status often remained uncertain during the conflict.

  • → Death of an accused automatically terminates ICC proceedings; Israel’s actions effectively removed these cases from the docket for these specific individuals, though investigations into others for similar crimes could continue.

• Political Reverberations

  • Massive protest on Sydney Harbour Bridge in Australia (calling for recognition of Palestine) shifted Australian PM & Foreign Minister rhetoric toward recognising Palestinian statehood sooner; this signals public opinion’s impact on democratic governments' foreign policy, even influencing their posture towards international legal bodies like the ICC.

How Non-Party Nationals Become Subject to ICC

• IL principle: a state may prosecute any person committing crimes on its territory (territoriality principle); by joining RS, a state delegates part of that territorial jurisdiction to ICC. This means that even if a perpetrator's home country is not an ICC member, they can still be prosecuted if the crime occurs in the territory of a member state or a state that has accepted ICC jurisdiction.

• Therefore:

  • Israeli nationals committing crimes in Gaza fall under ICC (Palestine = territorial state, having acceded to the Rome Statute). Their nationality does not grant them immunity from prosecution for crimes committed in a jurisdiction accepting ICC authority.

  • Russian nationals in Ukraine fall under ICC (Ukraine = territorial state, having accepted ad hoc ICC jurisdiction).

  • BUT conduct of Israelis inside Israel or Russians inside Russia is outside ICC reach (unless UNSC refers or states consent), as the ICC's jurisdiction, generally, does not extend to crimes committed within the territory of non-member states without their consent or a UNSC referral.

Divergent U.S. Policies toward ICC

• President Joe Biden (26 Jul 2023 Executive Order)

  • Ordered all U.S. agencies to supply ICC with evidence of Russian war crimes, despite Pentagon objections. This marks a shift towards limited cooperation on specific issues where U.S. and ICC interests align.

• President Donald J. Trump (6 Feb 2020 Executive Order)

  • Imposed sanctions on ICC personnel; text claimed ICC has no jurisdiction over “thriving democracies” like USA & Israel. This policy reflected deep skepticism and outright hostility towards the ICC, asserting that the court lacked legitimate authority over citizens of non-party, democratic states.

Ethical & Practical Take-Aways

• Consent vs. Compulsion remains the central tension in IL effectiveness. The voluntary nature of international law largely underpinned by state consent contrasts with the coercive power of domestic law, making enforcement a persistent challenge.

• ICC advances accountability yet faces:

  • Political push-back by powerful non-parties, which can undermine its legitimacy and effectiveness.

  • Practical limits (no trials in absentia, meaning the accused must be in custody for a trial to proceed; constant need for arrest/custody of suspects). The ICC relies on the cooperation of states to execute warrants.

• Arrest warrants—even without immediate arrests—:

  • Isolate accused leaders, restricting their international travel and diplomatic engagement.

  • Stigmatise policies (e.g., child abductions; starvation tactics), shaping international discourse and public opinion.

  • Provide long-term record for history and future domestic prosecutions, ensuring that alleged crimes are documented and serve as a basis for potential future legal action.

• Broader stakes: preventing cycles of impunity, safeguarding civilian populations, reinforcing post-WWII legal architecture designed to avert existential threats—from nuclear war to climate collapse. The enforcement of international law is seen as crucial for maintaining global peace, security, and human dignity.