Today, on 21 November 2024, Pre-Trial Chamber I of the International Criminal Court (‘Court’), in its composition for the Situation in the State of Palestine,unanimously issued two decisions rejecting challenges by the State of Israel (‘Israel’) brought under articles 18 and 19 of the Rome Statute (the ‘Statute’). It also issued warrants of arrest for Mr Benjamin Netanyahu and Mr Yoav Gallant.

Decisions on requests by the State of Israel

The Chamber ruled on two requests submitted by the Israel on 26 September 2024. In the first request, Israel challenged the Court’s jurisdiction over the Situation in the State of Palestine in general, and over Israeli nationals more specifically, on the basis of article 19(2) of the Statute. In the second request, Israel requested that the Chamber order the Prosecution to provide a new notification of the initiation of an investigation to its authorities under article 18(1) of the Statute. Israel also requested the Chamber to halt any proceedings before the Court in the relevant situation, including the consideration of the applications for warrants of arrest for Mr Benjamin Netanyahu and Mr Yoav Gallant, submitted by the Prosecution on 20 May 2024.

As to the first challenge, the Chamber noted that the acceptance by Israel of the Court’s jurisdiction is not required, as the Court can exercise its jurisdiction on the basis of territorial jurisdiction of Palestine, as determined by Pre-Trial Chamber I in a previous composition. Furthermore, the Chamber considered that pursuant to article 19(1) of the Statute, States are not entitled to challenge the Court’s jurisdiction under article 19(2) prior to the issuance of a warrant of arrest. Thus Israel’s challenge is premature. This is without prejudice to any future possible challenges to the Court’s jurisdiction and/or admissibility of any particular case.

Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute

The Chamber also rejected Israel’s request under article 18(1) of the Statute. The Chamber recalled that the Prosecution notified Israel of the initiation of an investigation in 2021. At that time, despite a clarification request by the Prosecution, Israel elected not to pursue any request for deferral of the investigation. Further, the Chamber considered that the parameters of the investigation in the situation have remained the same and, as a consequence, no new notification to the State of Israel was required. In light of this, the judges found that there was no reason to halt the consideration of the applications for warrants of arrest.

Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice

Warrants of arrest

The Chamber issued warrants of arrest for two individuals, Mr Benjamin Netanyahu and Mr Yoav Gallant, for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024, the day the Prosecution filed the applications for warrants of arrest.

The arrest warrants are classified as ‘secret’, in order to protect witnesses and to safeguard the conduct of the investigations. However, the Chamber decided to release the information below since conduct similar to that addressed in the warrant of arrest appears to be ongoing. Moreover, the Chamber considers it to be in the interest of victims and their families that they are made aware of the warrants’ existence.

At the outset, the Chamber considered that the alleged conduct of Mr Netanyahu and Mr Gallant falls within the jurisdiction of the Court. The Chamber recalled that, in a previous composition, it already decided that the Court’s jurisdiction in the situation extended to Gaza and the West Bank, including East Jerusalem. Furthermore, the Chamber declined to use its discretionary proprio motu powers to determine the admissibility of the two cases at this stage. This is without prejudice to any determination as to the jurisdiction and admissibility of the cases at a later stage.

With regard to the crimes, the Chamber found reasonable grounds to believe that Mr Netanyahu, born on 21 October 1949, Prime Minister of Israel at the time of the relevant conduct, and Mr Gallant, born on 8 November 1958, Minister of Defence of Israel at the time of the alleged conduct, each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.

The Chamber also found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.

Alleged crimes

The Chamber found reasonable grounds to believe that during the relevant time, international humanitarian law related to international armed conflict between Israel and Palestine applied. This is because they are two High Contracting Parties to the 1949 Geneva Conventions and because Israel occupies at least parts of Palestine. The Chamber also found that the law related to non-international armed conflict applied to the fighting between Israel and Hamas. The Chamber found that the alleged conduct of Mr Netanyahu and Mr Gallant concerned the activities of Israeli government bodies and the armed forces against the civilian population in Palestine, more specifically civilians in Gaza. It therefore concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory. For these reasons, with regards to war crimes, the Chamber found it appropriate to issue the arrest warrants pursuant to the law of international armed conflict. The Chamber also found that the alleged crimes against humanity were part of a widespread and systematic attack against the civilian population of Gaza.

The Chamber considered that there are reasonable grounds to believe that both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024. This finding is based on the role of Mr Netanyahu and Mr Gallant in impeding humanitarian aid in violation of international humanitarian law and their failure to facilitate relief by all means at its disposal. The Chamber found that their conduct led to the disruption of the ability of humanitarian organisations to provide food and other essential goods to the population in need in Gaza. The aforementioned restrictions together with cutting off electricity and reducing fuel supply also had a severe impact on the availability of water in Gaza and the ability of hospitals to provide medical care.

The Chamber also noted that decisions allowing or increasing humanitarian assistance into Gaza were often conditional. They were not made to fulfil Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied with goods in need. In fact, they were a response to the pressure of the international community or requests by the United States of America. In any event, the increases in humanitarian assistance were not sufficient to improve the population’s access to essential goods.

Furthermore, the Chamber found reasonable grounds to believe that no clear military need or other justification under international humanitarian law could be identified for the restrictions placed on access for humanitarian relief operations. Despite warnings and appeals made by, inter alia, the UN Security Council, UN Secretary General, States, and governmental and civil society organisations about the humanitarian situation in Gaza, only minimal humanitarian assistance was authorised. In this regard, the Chamber considered the prolonged period of deprivation and Mr Netanyahu’s statement connecting the halt in the essential goods and humanitarian aid with the goals of war.

The Chamber therefore found reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare.

The Chamber found that there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration. On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met. However, the Chamber did find that there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.

In addition, by intentionally limiting or preventing medical supplies and medicine from getting into Gaza, in particular anaesthetics and anaesthesia machines, the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment. Doctors were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics, and/or were forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering. This amounts to the crime against humanity of other inhumane acts.

The Chamber also found reasonable grounds to believe that the abovementioned conduct deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and that the population was targeted based on political and/or national grounds. It therefore found that the crime against humanity of persecution was committed.

Finally, the Chamber assessed that there are reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza. In this regard, the Chamber found that the material provided by the Prosecution only allowed it to make findings on two incidents that qualified as attacks that were intentionally directed against civilians. Reasonable grounds to believe exist that Mr Netanyahu and Mr Gallant, despite having measures available to them to prevent or repress the commission of crimes or ensure the submittal of the matter to the competent authorities, failed to do so.

Background

On 1 January 2015, The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting jurisdiction of the Court since 13 June 2014.

On 2 January 2015, The State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for The State of Palestine on 1 April 2015.

On 22 May 2018, pursuant to articles 13(a) and 14 of the Rome Statute, The State of Palestine referred to the Prosecutor the Situation since 13 June 2014, with no end date. 

On 3 March 2021, the Prosecutor announced the opening of the investigation into the Situation in the State of Palestine. This followed Pre-Trial Chamber I’s decision on 5 February 2021 that the Court could exercise its criminal jurisdiction in the Situation and, by majority, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. 

On 17 November 2023, the Office of the Prosecutor received a further referral of the Situation in the State of Palestine, from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, and on 18 January 2024, the Republic of Chile and the United Mexican State additionally submitted a referral to the Prosecutor with respect to the situation in The State of Palestine.


Wanted for War Crimes: ICC Issues Arrest Warrants for Netanyahu & Gallant over Gaza

November 21, 2024
Source: Democracy Now


The International Criminal Court has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for crimes against humanity and war crimes committed during Israel’s assault on Gaza. The court also issued a warrant for Hamas’s military chief Mohammed Deif, whom Israel said they killed in August. This is a major development on the international stage, says HuffPost correspondent Akbar Shahid Ahmed, particularly in its implications for U.S. culpability in Israeli war crimes. The Biden administration, as Netanyahu’s “ultimate enabler,” is visibly “totally alone” in its refusal to recognize Israel’s crossing of “red lines,” as even its ally nations who are party to the ICC are now legally required to cooperate with the court’s decision.





Transcript

This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: In The Hague, the International Criminal Court has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for crimes against humanity and war crimes committed during Israel’s assault on Gaza. In a statement, the ICC said the Israeli leaders had, quote, “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.”

The ICC also issued an arrest warrant for Hamas military commander Mohammed Deif, though Israel’s military claims it killed Deif in a July airstrike.

The ICC arrest warrants come a week after a U.N. special committee found Israel’s actions in Gaza since October 2023 are, quote, “consistent with genocide,” including using starvation as a weapon of war and recklessly inflicting civilian casualties.

AMY GOODMAN: In related news, on Wednesday, the United States vetoed a Gaza ceasefire resolution at the U.N. Security Council for the fourth time, and the U.S. Senate rejected a resolution brought by Senator Bernie Sanders that sought to block the sale of U.S. tank rounds, bomb kits and other lethal weapons to Israel. Nineteen senators supported blocking the arms.

For more on all of this, we’re joined by Akbar Shahid Ahmed, senior diplomatic correspondent for HuffPost. His latest piece is “Exclusive: White House Says Democrats Who Oppose Weapons to Israel Are Aiding Hamas.”

Ahmed, thank you so much for being with us. As you write your book on the Biden administration in Gaza called Crossing the Red Line, clearly the ICC has ruled that today by issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu, as well as the former Defense Minister Yoav Gallant. Can you talk about the significance of this move?

AKBAR SHAHID AHMED: Yeah, Amy. This is just an absolutely huge development, and it’s significant for a number of reasons. It’s significant because the ICC has come out and amplified and affirmed the allegations of crimes against humanity, of war crimes. This is one more international body. These are [inaudible] international charges with a great deal of respect. This is a court that most of the world is a member of. And they’re coming out and saying, “Look, we think there are reasonable grounds to believe that these major international red lines have been crossed by the Israelis.”

What’s really important to remember is that this isn’t just a decision about Israel. By extension, it fundamentally is a decision about the United States, which has been the ultimate enabler of Israel’s offensives in Gaza and Lebanon, which are under consideration by the ICC. And even in this ICC statement today, they point out that in the situations where Israel has addressed concerns over what it describes as starvation as a method of warfare — right? — depriving civilians, Palestinians, of food, water and medical equipment, Israel has really only done so in an extremely arbitrary and, what the ICC judges call, conditional way in response to the U.S. So, fundamentally, Amy, what we’re seeing is the ICC is saying yet again that Israel and the U.S., as its major enabler and backer, are in the dark and will continue to be in the dark for years to come.

This kind of adds to a broader picture in which there are now ICC warrants for the sitting Israeli prime minister and former Defense Minister Yoav Gallant, who remains a significant politician in Israel. Simultaneously, there’s the genocide case at the ICJ, the International Court of Justice, which is ongoing and will be ongoing for years to come. And there’s the Geneva Conventions conference underway next year regarding kind of similar issues — right? — violations of international law, laws of war and the Israeli grave abuses that are alleged. So, the U.S. and Israel will be kind of on trial on the international stage for years to come.

NERMEEN SHAIKH: So, Akbar, would you say that this move is mostly a symbolic one? Because, as you pointed out, of course, most countries are members of the International Criminal Court, but in this instance, perhaps most importantly, neither Israel nor the U.S. are.

AKBAR SHAHID AHMED: Right, Nermeen. And that’s something that the ICC judges did get into today — right? — because Israel said, “Look, the International Criminal Court doesn’t have jurisdiction over us.” That said, the state of Palestine is a member of the court, and that’s why this becomes a relevant and interesting thing, because you’ve seen European nations recognize Palestine as a state. You’ve seen Palestine join the United Nations General Assembly over just last year. So, yes, while the U.S. and Israel continue to reject international scrutiny by the ICC, by the ICJ of Israel’s conduct in Gaza and the occupied West Bank and Lebanon, there’s a growing international push to kind of challenge that, right?

And I think you will see the Biden administration and the incoming Trump administration assertively push back against the ICC. The Trump administration did actually target the ICC directly when President Trump was last in office, threatening to put sanctions on ICC officials. And we also know from reporting that the Israelis have spied on and threatened the ICC themselves, according to reporting by The Guardian. So, yes, there will be increased pressure.

But I think we’re really in a place that no one thought we would be even a few months ago, right? I think even the prospect of the ICC prosecutor successfully getting these warrants issued, it was initially thought that would be quite quick. It’s taken a long time. The fact that judges were able to issue those warrants suggests that even though it’s an uphill battle to get this international scrutiny, there’s a real determination and clear will. And we’ve seen a lot of states turn around and say over 13 months, right? Since the October 7 attack by Hamas within Israel that did spark this current round of fighting, there have been calls to say, “We don’t want this to escalate,” right? The U.S.’s allies, Western countries have said, “We want to resolve this. We don’t want you on trial. Can the U.S. and Israel please change course?” And what you’ve seen is a defiance from Tel Aviv and from Washington to say, “Actually, no, we’re continuing these wars.” So, that does take it to a different forum to kind of change the policy.

NERMEEN SHAIKH: And, Akbar, could you also — while we’re looking at the way in which international organizations, multilateral ones, are responding to this, what about the latest vote at the Security Council and the fact that the U.S. blocked it for the fourth time, a ceasefire vote?

AKBAR SHAHID AHMED: It’s really striking at this point — right? — to see the Biden administration totally alone. And you see how this develops over the course of the war. Initially, the U.S. was able to get Britain, even France, kind of abstaining, standing with them. And now, 13 months in, where conduct hasn’t changed, and you still have daily strikes that are killing dozens, sometimes over a hundred civilians, you have a mounting death toll of mostly women and children, the U.S. is totally alone, where it’s shielding Israel on the world stage diplomatically.

And this is really important to see in the context of the Biden administration as an outlier even among American presidents and administrations. When President Barack Obama was in office, after he was in the lame-duck period that Biden is in now, he actually did abstain at the United Nations Security Council and said, “You know what? Go ahead and pass a resolution that Israel doesn’t like,” because tacitly the U.S. acknowledged there was a basis, there were credible grounds for that resolution, which in that instance was about Israeli settlement activity.

Here, what you’re seeing from the Biden administration, even in their dying days — right? — two months to go, there’s an obstinacy, a defiance, and a real commitment to shielding Israel, even if they are totally alone against now their closest allies — Britain, France and everyone else on the Security Council. So, I think the context of that veto kind of presages whatever may come in the next two months in terms of the Biden administration allowing any U.N. scrutiny of the wars.

AMY GOODMAN: Akbar, I wanted to play Palestine’s envoy to the United Nations, Majed Bamya, speaking yesterday.


MAJED BAMYA: There is no right to mass killing of civilians. There is no right to starve an entire civilian population. There is no right to forcibly displace a people. And there is no right to annexation. This is what Israel is doing in Gaza. …


Maybe for some, we have the wrong nationality, the wrong faith, the wrong skin color. But we are humans! And we should be treated as such. Is there a U.N. Charter for Israel that is different from the charter we all have? Tell us. Is there an international law for them, an international law for us? Do they have the right to kill, and the only right we have is to die?



Akbar Shahid Ahmed is a foreign affairs reporter based in the D.C. bureau of HuffPost. A native Pakistani, Akbar has reported from across the Muslim-majority world. He's also written for the Milwaukee Journal Sentinel, Generation Progress and, in Pakistan, Newsline magazine and DAWN, and provided expert commentary for MSNBC, Al Jazeera, BBC Radio and SXSW 2018.


Opinion

What's next after ICC issues warrants for Israeli and Hamas leaders?

MEMO
November 21, 2024 

In this photo illustration, the International Criminal Court (ICC) logo is seen on a smartphone screen on 16 February 2024 [Pavlo Gonchar/SOPA Images/LightRocket via Getty Images]


Judges at the International Criminal Court (ICC) issued arrest warrants on Thursday for Israeli Prime Minister, Benjamin Netanyahu, and his former Defence chief and a Hamas leader for alleged war crimes and crimes against humanity, Reuters reports.

The move comes after the ICC Prosecutor, Karim Khan, announced on 20 May that he was seeking arrest warrants for alleged crimes connected to the 7 October attacks on Israel by Hamas and the Israeli military response in Gaza.

Here is a look at what could happen next, and how the ICC Prosecutor’s move might affect diplomatic relations and other court cases focused on Gaza.


Will Netanyahu and the Hamas leader be arrested?

All 124 member states of the ICC are obliged by the Court’s founding statute to arrest and hand over any individual subject to an ICC arrest warrant if they set foot on their territory.

READ: Hamas welcomes ICC arrest warrants for ‘terrorists’ Netanyahu and Gallant

But the Court has no means of enforcing such an arrest. It has no police force, so the arrest of suspects must be carried out by a member state or a cooperative state.

Sanctions for not arresting someone despite a warrant are little more than a diplomatic slap on the wrist, such as the referral of a country to the ICC’s governing body made up of member states and ultimately to the UN Security Council.

ICC members include all European Union countries, the United Kingdom, Canada, Japan, Brazil and Australia. In the Middle East region, the Palestinian Territories and Jordan are ICC members. Israel is not a member state, nor is the United States.

The Court bases its jurisdiction over Israeli officials on the fact that the Palestinian Territories were admitted as a member state in 2015. The Court can prosecute alleged atrocity crimes committed by nationals of member states and crimes committed by anyone, regardless of their nationality, on the territory of member states.

Can an ICC investigation or warrant be paused?

The Court’s rules allow for the UN Security Council to adopt a resolution that would pause or defer an investigation or a prosecution for a year, with the possibility of renewing that annually.

After a warrant is issued, the country involved or a person named in an arrest warrant can also issue a challenge to the jurisdiction of the Court or the admissibility of the case.

A case can be deemed inadmissible at the ICC when it is already being investigated or prosecuted by a state with jurisdiction over the crimes alleged.

But the Court has made it clear in the past that this exemption could only apply when a state is investigating or prosecuting the same people for substantially the same alleged crimes. An investigation into corruption charges, for instance, would not meet that “same person, same conduct” rule.

If there is a request to delay the investigation, the Prosecutor will pause the case and review if the state which requested the deferral is, indeed, carrying out a genuine investigation.

If the Prosecutor deems the national investigations are insufficient, he can apply for judges to reopen the investigation.

Can Netanyahu and other accused still travel?

Yes they can. The issuance of an ICC arrest warrant is not a formal travel ban. However, they do risk arrest if they travel to an ICC signatory state, which may influence indictees’ decision-making.

There are no restrictions on political leaders, lawmakers or diplomats from meeting individuals with an ICC arrest warrant against them. Politically, however, public perceptions of this may be bad.
Will this application for warrants influence other cases?

Not directly, but perhaps indirectly.

The ICC application is a separate matter from, for example, court cases demanding an arms embargo against Israel or South Africa’s case at the UN’s top Court, the International Court of Justice, which accuses Israel of violating the Genocide Convention in Gaza.

However, a decision by ICC judges that there are reasonable grounds to believe Netanyahu and former Defence Minister, Yoav Gallant, are committing war crimes and crimes against humanity in Gaza, it could strengthen South Africa’s ICJ case, as that Court also looks at other courts’ determinations.

The decision to issue a warrant can also bolster legal challenges demanding an arms embargo elsewhere, as numerous states have provisions against selling arms to states which might use them in ways that violate international humanitarian law.