Alessia Preti (Università di Bologna)

1. Introduction

On 21 November 2024, under the Situation in the State of Palestine (‘Situation’), the International Criminal Court (‘ICC’) issued arrest warrants against Benjamin Netanyahu, Prime Minister of Israel; Yoav Gallant, former Minister of Defence of Israel; and Mohammed Diab Ibrahim Al-Masri, highest commander of the military wing of Hamas.

This contribution aims to examine such development, based on information in the public domain, for the arrest warrants have been classified so as to avoid jeopardizing the security of witnesses and the efficacy of investigations. At the outset, this work briefly retraces the proceedings leading to the judicial measures under consideration; second, the decision of Pre-trial Chamber I (‘Chamber’) to issue arrest warrants is examined from both a substantive and procedural standpoint; third, the Chamber’s rejection is analyzed of Israel’s exceptions over the regularity of notification and lack of jurisdiction. Finally, the contribution concludes with few critical considerations, with special regard to the consistency of reactions to the arrest warrants from third States.

2. The proceedings before the ICC culminated with the issuance of the arrest warrants

A preliminary examination of the situation in Palestine was opened on 16 January 2015, following the accession of Palestine to the Rome Statute. In spite of the long-lasting debate over Palestine’s statehood, the accession found juridical basis in the UN General Assembly Resolution n. 67/19 of 2012, which attributed to Palestine the status of “non-member State” (see in a critical sense Conforti, p. 17). In May 2018, Palestine referred the situation to the Office of the Prosecutor (‘OTP’) under articles 13(a) and 14 of the Statute for the opening of an investigation on the alleged crimes committed in every part of its territory since 13 June 2014. In 2019, by resorting to article 19(3) of the Statute, albeit irregularly (see Cimiotta), the Prosecutor requested confirmation of the scope of the Court’s territorial jurisdiction under article 12(2)(a), encouraging the deposit of amicus curiae observations on the issue. With its Decision adopted by majority on 5 February 2021, Pre-Trial Chamber I confirmed the extension of the jurisdiction over the territories occupied by Israel since 1967 (Gaza and the West Bank, including East Jerusalem) based on Palestine’s effective accession to the Rome Statute, aside from the contentious question of its statehood (see Cimiotta; Ambos). The Decision also incidentally addressed, without resolving it, the issue of the Oslo Accords, which reemerged more recently after the Prosecutor’s request for arrest warrants. These are the agreements concluded between Israel and the PLO starting from 1993, aimed at achieving “a just, lasting and comprehensive peace settlement and historic reconciliation” between the parties through an agreed political process which consisted also in the attribution of rights and duties over portions of territories and the respective populations, including criminal jurisdiction (see Watson). On 3 March 2021, the Prosecutor announced the opening of an investigation in the Situation in the State of Palestine.

The recent intensification of the conflict has undoubtedly hastened the conclusion of the investigation. The humanitarian crisis in Gaza pushed various States to formally draw the Prosecutor’s attention to the situation in Palestine through additional referrals(one in November 2023; one in January 2024). By their arrival, the Prosecutor confirmed that the already ongoing investigation also extended to the escalation of hostilities started the 7 October 2023. The request for arrest warrants was filed on 20 May 2024. The United Kingdom then sought authorization for the deposit of written observations on the “outstanding” jurisdictional questions, particularly concerning the Oslo Accords. Tasked with determining whether the conditions for the issuance of the warrants were met, the Chamber authorized the submission of amicus curiae observations, once again receiving numerous contributions (40 states, also counting all members of international organizations intervened; 41 academics and civil society organizations; 3 individuals). Israel submitted two requests: one seeking a new notification from the OTP pursuant to article 18(1) outlining the defining parameters of the investigation started the 7 October 2023; the other challenging the jurisdiction of the Court under article 19(2) of the Statute. Only after several months did the Chamber order the issuance of the warrants, while simultaneously rejecting these requests.

3. Alleged crimes object of the warrants of arrest

With the issuance of arrest warrants for the sole surviving Hamas militia leader, and the Israeli government officials most involved in the conflict, the Chamber confirmed that there are reasonable grounds to believe that the suspects substantially violated the Rome Statute. Notably, the Chamber endorsed the Prosecutor’s framing of the hostilities in Gaza, classifying the situation under review as a conflict that is simultaneously international and non-international in nature. This two-tiered classification arises from its characterization both as a conflict between Israel and Palestine and as one between Israel and Hamas (see Malik; Quigley). This allows the Court to apply the relevant rules of international humanitarian law for each type of conflict and to charge conducts falling under all war crimes of its competence (in general, see Marauhn e Ntoubandi).

Concerning the crimes allegedly committed by Al-Masri, in light of the modalities of action employed during the operation of 7 October 2023, the Chamber highlighted that there are reasonable grounds to consider them as part of a widespread and systematic attack directed by Hamas and other groups against the Israeli civilian population. This finding validates the potential classification of the acts in question under the normative framework of crimes against humanity as defined in article 7 of the Statute. Among other relevant conducts, the execution of mass killings by the members of the group in various Israeli communities and during the Supernova festival could qualify not only as murder (article 7(1)(a) of the Statute), but also as extermination (article 7(1)(b)). Moreover, there are reasonable grounds to conclude that these same acts integrate the war crime of intentionally directing attacks against civilians (article 8(2)(b)(i)). Regarding the capture of a large number of civilians, it is reasonably believed that the war crime of taking hostages was also committed (article 8(2)(a)(viii)). The conduct in question, aimed at securing the release of Palestinians held by Israel in exchange for the hostages, was indeed accompanied by the requested subjective element (see Elements of crimes). Finally, concerning the treatment allegedly suffered by the hostages, the Chamber concluded that there are reasonable grounds to believe the following crimes were committed: torture (articles 7(1)(f) and 8(2)(a)(ii)); rape and other forms of sexual violence (articles 7(1)(g) and 8(2)(b)(xxii)); cruel treatment (article 8 (2)(b)(xxii)); outrages upon personal dignity (article 8(2)(b)(xxi)). In connection with these allegations, Al-Masri’s criminal responsibility would arise from his direct commission of the mentioned crimes, from having ordered their commission or, as the commander of the armed group, from his failure to prevent their commission.

With regards to the allegations formalized in the arrest warrants against Netanyahu and Gallant, the Chamber began by emphasizing that their conduct must be evaluated under a dual perspective. In fact, Israel is not only engaged in an armed conflict with Hamas and Palestine, but in relation to the Palestinian population it is also the occupying power in occupied territories (see, on the illegal character of the occupation, the ICJ advisory opinion of July 2024). The Chamber stated that by deliberately limiting humanitarian aid access and failing to facilitate relief by all possible means, the two suspects severely compromised humanitarian organizations’ ability to provide essential goods to the population in Gaza, with devastating consequences in terms of access to food and drinkable water, and hospital functioning. No clear military necessity or other justification under international humanitarian law has been identified to warrant such severe restrictions on humanitarian relief operations. Significantly, the Chamber further noted that the intentional, prolonged period of deprivation, together with certain declarations by Netanyahu, would demonstrate a direct link between the halt of humanitarian aids and war objectives. Based on these considerations, there are reasonable grounds to believe that Netanyahu and Gallant are responsible for the war crime of starvation as a method of warfare (article 8 (2)(b)(xxv)). Furthermore, the resulting deaths and severe suffering inflicted thorough the deprivation of food, water and medicines to all the population in Gaza provide reasonable grounds to believe that the two individuals committed the crimes against humanity of murder (article 7 (1)(a)), inhumane acts (article 7(1)(k)) and persecution (article 7(1)(h)). Lastly, Netanyahu and Gallant can be plausibly held responsible for the war crimes of intentionally directing attacks against the civilian population in Gaza (articles 8 (2)(b)(i) and 8(2)(e)(i) of the Statute).

Comparing these provisional charges to the broader factual record of the conflict reveals significant gaps. Some specific instances that could integrate crimes within the Court’s jurisdiction do not seem to have been considered in the formalized allegations (see  Poltronieri Rossetti). In particular, reference is made to war crimes under article 8 which make up, together with the direction of attacks against civilians, the content of the general prohibition of conducting indiscriminate or disproportionate attacks: under paragraph (2)(b)(iii) intentionally attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission; (iv) launching an attack knowing its disproportionate character (see, in relation to the attack on  the Jabalia refugee camp Schack); (ix) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected (see in general Schabas Part II, Article 8). Despite a marked increase in such attacks after 20 May 2024, various episodes had already occurred during the period under review by the Chamber for the issuance of the current warrants (see Asi e Mills; and the multiple reports by UNRWA and OCHA). This raises questions on the thoroughness of the allegations and the criteria used in identifying relevant conduct, especially in a context that is undoubtedly complex, but ictu oculi characterized by several acts ascribable to violations of the international humanitarian law incorporated in the Statute of the Court.

4. The rejection of Israel’s exceptions and the further deferment of pending jurisdictional questions

As noted earlier, one of the two instances related to alleged irregularities in the notification process at the opening of the investigations pursuant to article 18 of the Statute (observations on this point were also submitted by the United States). Israel asked the Chamber to recognise the insufficient specificity of the notification made by the OTP in 2021, or to confirm that a new situation arose after 7 October 2023, and, on either ground, to order a new notification from the OTP. Arguably, the underlying rationale for this request resides in the possibility, had it been accepted, of obtaining new terms for the exercise of article 18(2) prerogatives. This allows a State to request, within one month from the notification, the deferral of the Prosecutor’s investigations based on the fact that it is investigating (or has investigated) its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification. However, the Chamber did not share Israel’s views. In particular, it concluded that the notification of 9 March 2021, which presented all elements requested by article 18(1), is sufficiently specific and remains valid for investigations carried out after the October 2023 escalation. Moreover, the Chamber clarified that the procedure outlined in article 18(2) is aimed at granting admissibility challenges based on the principle of complementarity at the initial phase of the investigation, not once it has already reached an advanced stage. In brief: “[w]here a State is given the opportunity to assert its right to exercise jurisdiction, but it has declined, failed or neglected to do so, the investigation may proceed” (§14 of the Decision).

As to Israel’s challenge to the Court’s jurisdiction under article 19(2) of the Statute, this was based on two distinct but interrelated considerations. Substantively, Palestine would not possess what is required under international law to validly delegate its territorial jurisdiction to the Court. In terms of standing, Israel would be a State whose acceptance of the Court’s jurisdiction is required pursuant to article 19(2)(c). On this last point, the Chamber specified that due to Palestine’s acceptance of jurisdiction – as the State on the territory of which the conducts under investigation have occurred – the jurisdiction of the Court was properly established on the territorial criteria, and therefore Israel’s acceptance of jurisdiction – as the State of which the persons accused of the crimes are nationals – is not required. Consequently, Israel is not entitled to challenge the jurisdiction of the Court under article 19(2)(c).  

As for Palestine’s alleged inability to delegate jurisdiction to the Court, the Chamber merely observed that this issue had already been addressed in a prior decision that has become res judicata (§15). Concluding its decision, the Chamber reminded States that the opportunity to challenge the jurisdiction of the Court, or the admissibility of a case, arises only after the issuance of arrest warrants (§17). This last statement appears rather inconsistent with what was affirmed in the 2021 Decision (§131). In general, what emerges is that the Chamber seems once again willing to delay consideration of unresolved jurisdictional issues to a later stage, even though it has authorized the submission of amicus curiae observations on the matter before the issuance of the warrants (Order of 27 June 2024).

Nonetheless, given the 2021 Decision, it should be pointed out that the only outstanding jurisdictional questions would be those pertaining to the Oslo Accords, not to Palestine’s statehood – a matter the Chamber has already ruled upon. In other words, adhering to the theory whereas the Court’s jurisdiction is delegated by States Parties, doubts about the jurisdiction of the Court in the Situation could persist only due to Palestine’s alleged inability to delegate jurisdiction under the Oslo Accords (nemo dat quod non habet), not because Palestine is not, for some, a State. Having regard to the content of its recent appeal (the two requests made before the issuance of the warrants are not yet public), it seems that Israel advanced the second of the two arguments.

A review of the observations filed after the Prosecutor’s request for warrants (see Obel Hansen), particularly those concerning the validity of the delegation of jurisdiction under the Oslo Accords, highlights how it would have been desirable for the Chamber to address these matters already at this stage of proceedings. These observations reflect the existence of deeply divergent views among States parties (and non-parties) to the Rome Statute regarding the very foundation of the ICC’s jurisdiction. More specifically – and primarily – doubts persist about whether the jurisdiction of the Court is delegated in nature. Furthermore, it is not clear whether agreements such as Oslo II (substantially comparable to SOFAs, in terms of effects on the jurisdiction of a State) could restrict the scope of the Court’s jurisdiction or, at most, merely limit a State’s own exercise of jurisdiction. Upon closer inspection, the Court has never developed a precise position on these merits (see Cormier). What remains undisputed is that for Palestine – as acknowledged by the Prosecutor in 2020 – “the relevance of the Oslo Accords could arise in the context of article 98(2), when the Court requests the arrest and surrender of a person”.

5. Conclusions

It is difficult to overstate the significance of the warrant’s issuance, both in the proceedings before the ICC and in the political dimension of the Israeli-Palestinian conflict. The Court’s findings on the existence of reasonable grounds to believe that the Rome Statute has been violated by Netanyahu, Gallant and Al-Masri seem certainly well-grounded, notwithstanding the possibility that further charges may arise in connection with events occurred after 20 May 2024. Form a procedural standpoint, it appears that the Chamber missed a crucial opportunity to dispel all doubts regarding the Court’s jurisdiction in the Situation de quo. A further ruling will thus be necessary, inter alia, to obtain clarity on the relevance of the Oslo Accords.  

In the meantime, States reacted to the warrants. As was to be expected, those targeting Israeli ministers have provoked strong criticism from States close to Israel, particularly the United States. Israel, despite questionable statutory standing, has also appealed the recent decisions rejecting its earlier requests. On the other hand, there have been statements of support for the Court’s work and encouragement to uphold international law more generally, coming from countries such as South Africa, Switzerland, Sweden, the Netherlands, Ireland, Belgium, Canada, and Jordan. The EU’s High Representative for Foreign Affairs, Joseph Borrell, has explicitly reiterated that the ICC’s decision is a legal, not political, matter, leaving no room for discretion: States Parties to the Rome Statute are bound to comply with the resulting obligations. Nevertheless, it is difficult to overlook a certain degree of ambiguity expressed by some representatives of EU member states. France, for example, while declaring it will act in accordance with the Statute, holds the view that Netanyahu’s arrest would be hindered by the immunity he enjoys as Prime Minister of Israel, a State that it is not a party to the ICC system. This is an argument that the Court has already addressed, dismissing its validity (see Al-Bashir case). As we wait for further developments in legal fora, the search for lasting peace in Gaza continues amidst the tensions between the rationale of politics and those of law.