PROSECUTION OF DUAL-NATIONAL ISRAELI SOLDIERS

Since October last year, Israeli officials have not only made genocidal statements but have been acting upon them physically. As Palestinian health authorities report, Israel’s ground and air campaign in Gaza has killed more than 42,600 Palestinians so far, the majority women and children. The United Nations also states that Israel’s bombardment has damaged or destroyed two-thirds of the buildings across the Gaza Strip. A UN-backed commission stated in a new report that Israeli authorities are responsible for “war crimes and crimes against humanity” committed during the military operations and attacks in Gaza since 7 October 2023.

The Geneva Conventions (1949) along with the Additional Protocols I and II (1977) enlist acts prohibited in the course of international and non-international armed conflict. Violation of these amounts to war crimes, crime against humanity or genocide. Since such crimes are considered international crimes of the most serious nature, they entail universal jurisdiction and erga omnes obligations. This means that all states have a duty to prosecute or extradite individuals responsible for war crimes and crimes against humanity regardless of whether the state ratified the Geneva Conventions, the nature of conflict (international or non-international), or the place of the crime committed.

In 1998, the International Criminal Court (ICC) was established under the Rome Statute to prosecute individuals responsible for war crimes, crimes against humanity, genocide and aggression. The ICC acts based on the principle of complementary, where national criminal jurisdiction always has priority to prosecute the perpetrator over the ICC. Therefore, it is the right of a state, based on the active personality principle, to prosecute its nationals regardless of the place of commission of a crime. Under the Rome Statute, it is a primary responsibility (not an optional right) of a state party to investigate and prosecute individuals accused of war crimes and crimes against humanity. The ICC intervenes only when the state parties are unwilling or unable to prosecute international crimes through their national judicial systems.

However, the ICC’s jurisdiction also extends to non-state parties in two situations: 1) where a non-state party refers a matter to the ICC; and 2) where the United Nations Security Council (UNSC) refers a matter to the ICC. However, even in the absence of a referral by a state party, non-state party, or the UNSC, the ICC prosecutor also has the authority to initiate investigations proprio motu  (on their own initiative) when the crimes in question are committed by nationals of a state party or on the territory of a state party. In this situation, the Prosecutor must seek authorisation from the ICC’s Pre-Trial Chamber before initiating an investigation.

The ICC operates based on the principle of individual criminal responsibility, which means that international criminal responsibility lies with persons, not with governments or states. The principle of individual criminal responsibility ensures that soldiers cannot hide behind the defence of superior orders, leadership command, or state policy. However, the Rome Statute makes it clear that individual criminal responsibility does not exempt superior leadership from the responsibility of their subordinates. Under the doctrine of command responsibility, military commanders and civilian superiors can be held criminally responsible for crimes committed by their subordinates if they knew (or should have known) about the crimes and failed to prevent or punish the perpetrators.

On 20 May 2024, the Office of the ICC Prosecutor requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant. ICC Prosecutor Karim Khan stated: “Based on the evidence collected and examined by my office, I have reasonable grounds to believe that Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Minister of Defense, bear criminal responsibility for war crimes and crimes against humanity committed on the territory of the State of Palestine (specifically in the Gaza Strip) from at least October 8, 2023.”

As Israel is not a party to the Rome Statute, the ICC Prosecutor asserted the jurisdiction of ICC by stating that on 5 February 2021, the Pre-Trial Chamber ruled that, with its territorial scope extending to Gaza, the West Bank and East Jerusalem, the Court can exercise criminal jurisdiction in the situation in the State of Palestine even though Israel is not a party under Article 12(2)(a). This mandate is ongoing and includes the escalation of hostilities and violence since 7 October 2023. The Prosecutor also clarified that the ICC has jurisdiction over crimes committed by nationals of states parties, as well as nationals of non-states parties when these crimes occur on the territory of a state party (in this case, Palestine).

Under the Israeli Security Service Law, all Israeli citizens, whether residing within the country or abroad, are required to enlist in the military. This obligation extends to dual nationals (also referred to as bi-nationals in this article), including those who permanently reside outside of Israel. Service in the Israel Defence Forces (IDF) is not limited to citizens alone but also open to individuals holding dual citizenship. Additionally, the Israeli army includes  “lone soldiers” who serve without family support in Israel. According to the Lone Soldier Centre, over 7,000 lone soldiers are currently serving in the army; 45 per cent of them new immigrants from Jewish communities around the world.

For instance, the UK Foreign Office confirmed that at least 80 British nationals were serving in the Israeli military. Europe 1, a prominent radio broadcaster in France, reported that 4,185 individuals of French or Franco-Israeli nationality were engaged in combat alongside the IDF in Gaza. Similarly, an estimated 23,380 US citizens are believed to be serving in the Israeli armed forces, according to the Washington Post. The South African Foreign Ministry has also expressed grave concern over reports that South African citizens serving in the Israeli military have joined the conflict in Gaza.

However, many countries do not criminalise the act of joining the military forces of another nation based on dual nationality. Lord Ahmad of Wimbledon, UK minister of state, has said: “The UK recognises the right of British nationals with dual nationality to serve in the legitimately recognised armed forces of their additional nationality.” Similarly, French Foreign Ministry spokesperson Christophe Lemoine said that dual citizenship implies dual loyalty, and as a result, France does not investigate the military activities of French-Israeli citizens in relation to their obligations in Israel. The US State Department has also confirmed that American citizens are not prohibited from serving in the military of a foreign nation.

However, while dual nationals may be permitted to serve in the armed forces of their other nationality, they are not immune from prosecution if they engage in crimes against humanity or commit war crimes. The International Centre for Justice in Palestine (ICJP) warns that British nationals, including dual Israeli-British nationals, are “at risk of participating in war crimes, crimes against humanity and acts of genocide.” Likewise, in France, lawmakers have called for the prosecution of French-Israeli citizens found to be involved in war crimes, including those participating in military operations in the Gaza Strip.

To make bi-national Israeli soldiers accountable for their war crimes, the Hind Rajab Foundation has initiated legal action against them invoking the active nationality principle. In an interview, Dyab Abou Jahjah, spokesperson for the foundation, explained their approach: “We are targeting Israeli soldiers who hold dual nationalities, specifically those who are also citizens of European countries. If you are a citizen of countries like the Netherlands or Belgium and are committing war crimes abroad, as is the case with these soldiers in Gaza, you are accountable to the legal system of your home country. So these are the advantages of the national law approach right so we started fighting these cases.”

Jahjah further explained why the foundation is pursuing war crime charges against bi-national Israeli soldiers rather than genocide charges. He stated: “What’s happening is clearly genocide, but when a soldier burns a house or shoots a civilian, they are committing a war crime. If we can prove that these actions are part of a systematic policy, then it qualifies as genocide. However, it’s crucial to hold them accountable for their individual war crimes.”

“I believe we must use the legal tools at our disposal to establish accountability at the individual level. These soldiers cannot hide behind the excuse of simply following orders. They are individually responsible for this before talking about their state,” he added.

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Clearly, some European states are already showing clear intent of reconsidering their traditional unconditional support for Israel due to its indiscriminate offensive in the Gaza Strip and clear intention to expand the conflict to other territories. However, given the jurisdictional challenges and the ongoing support for Israel by the US and some powerful European states including Germany and the United Kingdom, the chances of prosecuting Israeli war criminals by the ICC are slim. Following the ICC Prosecutor’s application for arrest warrants for Netanyahu and Gallant, he was accused of being biased and political by some American Congressmen. Hopefully, the ICC withstands the political pressure from the pro-Israel lobby.

The prosecution of these bi-nationals would, at the very least, help to expose the brutality of Israeli war operations. As the Abu Jahjah has said: “If one Israeli soldier is condemned in Belgium for war crimes and crimes against humanity, it implicitly condemns the entire Israeli military effort and political leadership for their role in committing this genocide.”

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of Independent Press.