Palestine/Israel: ICC Arrest Warrants for Israeli and Hamas Leaders a Significant Step in the Pursuit of Justice

Nov 21, 2024 | Advocacy, News, Press Releases

The International Commission of Jurists (ICJ) salutes the decision of the Pre-Trial Chamber I of the International Criminal Court (ICC) to issue warrants of arrest for Benjamin Netanyahu and Yoav Gallant, the Prime Minister and the former Minister of Defence of Israel, respectively, and for Mohamed Diab Ibrahim Al-Masri, also known as Deif, the highest commander of the military wing of Hamas, for alleged war crimes and crimes against humanity committed on the territory of the State of Israel and the State of Palestine from at least 7 October 2023.

“The ICC considered the law and the evidence and found reasonable grounds to believe that Benjamin Netanyahu, Yoav Gallant and Mohamed Deif bear responsibility for crimes against humanity and war crimes,” said Saïd Benarbia, ICJ Middle East and North Africa Programme Director. “States must fully comply with their legal obligations under international law and give full effect to the arrest warrants.”

The landmark decision is a vindication of the human rights of victims and a resounding signal that no one is above the law.  The responsibility to enforce the arrest warrants remains with States, and they must not give aid or comfort to, or shield any of the suspects from accountability.

The Pre-Trial Chamber I of the ICC found reasonable grounds to believe that Mr. Netanyahu and Mr. Gallant each bear criminal responsibility for:

  • 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.

The Chamber also found reasonable grounds to believe that Mr. Deif is responsible for the crimes against humanity of murder; extermination; torture; and rape and other forms of sexual violence; as well as the war crimes of murder, cruel treatment, torture; taking hostages; outrages upon personal dignity; and rape and other forms of sexual violence.

“The victims of these atrocities and their families must have their day in court. States and the international community as a whole have failed to end their untold suffering for more than a year. They should not betray them again by failing to arrest and surrender the alleged perpetrators whenever the opportunity should arise,” Benarbia concluded. 

Background

As the International Criminal Court has explained, the background to Pre-Trial Chamber I’s issuance of the arrest warrants today is as follows:
“On 1 January 2015, The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the 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.”

The Pre-Trial Chamber I also ruled today, 21 November 2021, unanimously on requests submitted by Israel. In its first request, Israel challenged the Court’s jurisdiction over the Situation in the State of Palestine in general and, more specifically, over Israeli nationals. In the second, Israel requested the Chamber to order the Prosecution to provide a new notification of the initiation of an investigation to its authorities and also to halt any proceedings before the Court in the relevant situation, including with respect to the Prosecutor’s applications of 20 May 2024 for warrants of arrest for Mr. Benjamin Netanyahu and Mr. Yoav Gallant.

As to Israel’s challenge to the Court’s jurisdiction, 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.

On 20 May 2024, the ICC Prosecutor announced that he had applied for arrest warrants against the Israeli Prime Minister and Minister of Defence, as well as against Yahya Sinwar, Mohammed Deif and Ismail Haniyeh —  respectively, military and political leaders of Hamas —  for a number of war crimes and crimes against humanity. Both Ismail Haniyeh and Yahya Sinwar were killed by Israeli forces since then.

Following the Prosecutor’s application, the United Kingdom (UK) requested permission to file observations objecting to the ICC’s jurisdiction over Israeli nationals based on Palestine’s purported lack of jurisdiction over Israeli nationals by virtue of the Oslo Accords. In the aftermath of the UK’s change of government, following the 4 July general election in the country, the new UK administration withdrew the request to file observations with the ICC. By then, however, the ICC had already granted permission to several interested States, organizations, including the ICJ, and individuals to file written observations on whether or not the Oslo Accords were a bar to the Court exercising jurisdiction over Israeli nationals, among other issues.

In amicus curiae observations submitted to the International Criminal Court (ICC) on 6 August 2024, the International Commission of Jurists argued that the Oslo Accords did not bar the Court from exercising its jurisdiction over crimes allegedly perpetrated by Israeli nationals on the territory of the State of Palestine that fall within its jurisdiction under the Rome Statute.

Contact
Saïd Benarbia, Director, ICJ Middle East and North Africa Programme; t: +41 22 979 3817, e: said.benarbia(a)icj.org
Nour Al Hajj, Communications & Advocacy Officer, ICJ Middle East and North Africa Programme; e: nour.alhajj(a)icj.org 

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