ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant.
The International Criminal Court has unanimously issued two decisions rejecting challenges by Israel. It also issued warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant.
The arrest warrants were issued on Thursday.
The ICC ruled on two requests submitted by Israel on September 26, 2024. In the first request, Israel challenged the court’s jurisdiction over the situation in 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 ICC to halt any proceedings before the court in the relevant situation, including the consideration of the applications for warrants of arrest for Netanyahu and Gallant, submitted by the Prosecution on 20 May 2024.
Regarding the first challenge, the court noted that Israel’s acceptance of the court’s jurisdiction is not required, as the court can exercise its jurisdiction based on the territorial jurisdiction of Palestine, as determined by Pre-Trial Chamber I in a previous composition.
Furthermore, the court 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,” said ICC.
The ICC 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 court considered that the parameters of the investigation in the situation had 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.
The court issued warrants of arrest for Netanyahu and 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’ to protect witnesses and safeguard the conduct of the investigations.
With regard to the crimes, the court found reasonable grounds to believe that Netanyahu, at the time of the relevant conduct, and Gallant, 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 court also found reasonable grounds to believe that Netanyahu and Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.
ICC 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 court also found that the relating to non-international armed conflict applied to the fighting between Israel and Hamas.
The court found that the alleged conduct of Netanyahu and 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 concerning war crimes, the court found it appropriate to issue the arrest warrants pursuant to the law of international armed conflict.
