Questioned by journalist Darius Rochebin on the arrest warrant issued by the International Criminal Court (ICC) against Israeli Prime Minister Benjamin Netanyahu in particular, Manuel Valls was indignant, affirming that, on a legal level, the ICC had committed a “flagrant violation of the principle of subsidiarity” by prosecuting the Israeli leader in place of his country’s justice system. Let’s take a closer look.
Article 17 of the Rome Statute provides that the ICC has complementary jurisdiction to investigate international crimes (preamble and article 1 of the Rome Statute).
A complementary and not subsidiary competence
Unlike so-called subsidiary jurisdiction, chosen in particular by the European Court of Human Rights and which can only be exercised secondarily, the jurisdiction of the ICC can be exercised when the State concerned does not have any. not the ability or the will.
Indeed, in accordance with the principle of complementarity, national courts certainly have priority jurisdiction to judge international crimes covered by the Rome Statute. But, this priority is conditional on the finding by the Court of the will, as well as the capacity of the national authorities to effectively carry out these judgments.
So if the Court judges that the crimes that have been committed risk remaining unpunished, because the States have not taken the measures to try them, it will impose its jurisdiction on the States.
An absence of prosecutions from the Palestinian Authority and the Jewish State
In this case, no procedure in Israel targets Benjamin Netanyahu, his former defense minister, Yoav Gallant, or even Mohammed Deif, head of the armed wing of Hamas, for war crimes and crimes against humanity.
Like the Palestinian Authority, the Jewish state has shown no desire to try the leaders targeted by the ICC. Nothing says either that, in the current context, the international standards of impartiality, neutrality and independence of justice are met so that trials on these subjects can be held in these two territories.
Furthermore, the State of Israel is still free to prosecute its Prime Minister for war crimes and crimes against humanity. When requesting the issuance of the arrest warrants last May, ICC Prosecutor Karim Khan clarified that under the principle of complementarity, the ICC will cease its proceedings if the Palestinian Authority and the Hebrew state begins “independent and impartial judicial procedures”.
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