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The Possibility of the ICJ and the ICC Taking Action in the Wake of Israel’s Operation «Cast Lead» in the Gaza Strip

A Jurisdiction and Admissibility Analysis

Series:

Oded Friedmann

Israel’s Operation «Cast Lead» in Gaza differed from prior armed confrontations between Israel and Hamas both in terms of its death toll and destruction. Following the Operation, numerous members of the international community and non-governmental organizations severely criticized the conduct of both sides during the conflict, calling upon the International Court of Justice (ICJ) and, mainly, the International Criminal Court (ICC) to investigate international law violations alleged against Hamas and, to a greater extent, Israel. This book provides an in-depth analysis of whether Israel or Israelis could face a legal reckoning before the ICJ and ICC, based on the serious allegations made against the conduct of the Israeli Defense Forces during the Gaza armed conflict. The analysis focuses solely on jurisdiction and admissibility issues, and does not weigh in on the veracity or legal accuracy of the allegations.

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Chapter Three POSSIBLE ADMISSIBILITY OF CASES RELATED TO THE GAZA ARMED CONFLICT BEFORE THE INTERNATIONAL CRIMINAL COURT

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As is the case with other international judicial institutions – such as the ICJ and human rights courts – the issues of admissibility and jurisdiction in the sense of competence in the pending case have to be distinguished. Even though both concepts are closely related, the situation may arise, in which the ICC has juris- diction, but cannot exercise it due to the case being inadmissible. Consequently, the inadmissibility of a case does not affect the existence of ICC jurisdiction as such, but regulates when this jurisdiction may be exercised by the court1200. The admissibility of cases before the ICC is based on the concept of complementari- ty, whereby ICC jurisdiction “shall be complementary to national criminal juris- diction”1201. Accordingly, if a national judicial system is functioning properly in a certain case, the ICC shall determine that the case is inadmissible, as there is no reason for it to assume jurisdiction1202. 1. The rationale behind the principle of complementarity Despite the fact that the term “complementarity” is not explicitly used or defined in the Rome Statute, it has been adopted by many negotiators of the Statute and later on by commentators thereof to refer to the entirety of norms governing the 1200 Pichon, Jakob, “The Principle of Complementarity in the Cases of the Sudanese Nation- als Ahmad Harun and Ali Kushayb before the International Criminal Court”, Interna- tional Criminal Law Review 8 (2008), p. 188; Benzing, Markus, “The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty...

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