International Criminal Court Issues Arrest Warrants for Netanyahu and Gallant

Photo Credit: Marc Israel Sellem/POOL

Prime Minister Benjamin Netanyahu and former Minister of Defense Yoav Gallant hold a joint press conference in Tel Aviv on November 11, 2023.

The International Criminal Court (ICC) on Thursday took significant legal action against Israeli leaders, issuing arrest warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The charges stem from alleged war crimes and crimes against humanity, particularly linked to actions in Gaza and the broader Israeli-Hamas and Israeli-PA conflict. Key allegations include the starvation of civilians, intentional infliction of severe suffering, and settlement policies, which are considered potential breaches of international law.

Israel has strongly challenged the ICC’s jurisdiction, arguing that as a non-signatory to the Rome Statute, the court lacks authority over it. Additionally, Israeli authorities claim the principle of complementarity was violated, as they were not given the opportunity to address these allegations domestically before the ICC proceeded.

Anti-Israel Critics have countered that these jurisdictional objections do not hold under international law, given the ICC’s recognition of the Palestinian Authority’s right to refer cases under the Rome Statute of which it is a signatory.

ISRAEL’S CHALLENGES

On September 26, 2024, the ICC’s Pre-Trial Chamber issued rulings on two critical requests submitted by Israel regarding its challenges to ICC proceedings:

1. Challenge to Jurisdiction: Israel contested the ICC’s authority to investigate the Situation in the “State of Palestine,” arguing it lacked jurisdiction over Israeli nationals under Article 19(2) of the Rome Statute. Israel’s submission claimed that the court could not exercise jurisdiction because Israel is not a State Party to the Rome Statute, and the case involves complex sovereignty issues over the Palestinian territories.
2. Request for Prosecution Notification: Israel requested that the ICC Prosecution issue a fresh notification of its investigation under Article 18(1) of the Rome Statute. Additionally, it sought a suspension of all related proceedings, including the Prosecution’s applications for arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant submitted on 20 May 2024.

The ICC has not publicly disclosed all details of the chamber’s decisions, but Israel’s challenges highlight the ongoing disputes over jurisdiction, sovereignty, and procedural fairness in the ICC’s handling of situations involving non-State Parties. These cases underscore the court’s balancing act between legal jurisdiction and international political sensitivities.

THE COURT’S REJECTIONS

The ICC’s Pre-Trial Chamber rejected Israel’s request for a new notification of the Prosecution’s investigation under Article 18(1) of the Rome Statute.

The Chamber clarified that the Prosecution had already notified Israel of the investigation’s initiation in 2021. At that time, Israel declined to pursue a request for deferral, despite the Prosecution seeking clarification.

The Chamber also noted that the scope and parameters of the investigation have not changed since the original notification. As a result, it determined that no additional notification to Israel was necessary. Consequently, the judges ruled that there was no basis to suspend the ongoing proceedings, including the consideration of arrest warrant applications for Netanyahu and Gallant.

This decision reinforces the ICC’s stance on its jurisdiction over the “Situation in Palestine” and its approach to procedural fairness, emphasizing the importance of prior opportunities afforded to States under investigation.