Title: 

ICC judges issue three arrest warrants in the context of the Situation in the State of Palestine

Topics
Arrest warrant
16 December 2024
Regions: 
Middle East - North Africa
On 21 November 2024, judges of the International Criminal Court unanimously rejected the State of Israel’s challenges to its jurisdiction and issued arrest warrants in the Situation in the State of Palestine against Mr Benjamin Netanyahu, Mr Yoav Gallant and Mr Mohammed Diab Ibrahim Al-Masri (commonly known as ‘Deif’), for alleged war crimes and crimes against humanity committed from at least 7 October 2023 in the state of Israel and the state of Palestine.

Based on the Prosecution’s application of 20 May 2024, the Pre-Trial Chamber I (the Chamber) issued  for Mr Benjamin Netanyahu, Israel’s Prime Minister, and Mr Yoav Gallant, Israel’s Minister of Defence until 5 November 2024, for crimes against humanity and war crimes committed from at least 8 October 2023 to at least 20 May 2024, the day the Prosecution filed the applications for warrants of arrest. ICC judges found reasonable grounds to believe that both individuals bear criminal responsibility the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts, as co-perpetrators for committing the acts jointly with others. 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., Israel’s Prime Minister, and Mr Yoav Gallant, Israel’s Minister of Defence until 5 November 2024, for crimes against humanity and war crimes committed from at least 8 October 2023 to at least 20 May 2024, the day the Prosecution filed the applications for warrants of arrest. ICC judges found reasonable grounds to believe that both individuals bear criminal responsibility the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts, as co-perpetrators for committing the acts jointly with others. 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 issued a warrant of arrest for Mr Mohammed Diab Ibrahim Al-Masri (‘Deif’), the highest commander of the military wing of Hamas (known as the al-Qassam Brigades) at the time of the alleged conduct, for alleged crimes against humanity and war crimes committed on the territory of the State of Israel and the State of Palestine from at least 7 October 2023. In particular, the Chamber found reasonable grounds to believe that Mr Deif is responsible for the crimes against humanity of murder, extermination, torture, and rape and other form of sexual violence, as well as the war crimes of murder, cruel treatment, torture, taking hostages, outrages upon personal dignity, and rape and other form of sexual violence. The Chamber found reasonable grounds to believe that Mr Deif bears criminal responsibility for the aforementioned crimes for (i) having committed the acts jointly and through others and (ii) having ordered or induced the commission of the crimes, and (iii) for his failure to exercise proper control over forces under his effective command and control. 

 

Following the decision, the ICC Prosecutor noted that the Office of the Prosecutor (OTP) would continue to investigate independently and impartially in the situation in the State of Palestine and would pursue additional lines of inquiry in areas under the Court’s jurisdiction, which include Gaza and the West Bank, including East Jerusalem.  

On 20 May 2024, the Prosecution submitted applications for arrest warrants against Yahya Sinwar, Head of the Islamic Resistance Movement ('Hamas') in the Gaza Strip, and Ismail Haniyeh, Head of Hamas Political Bureau. The application for these warrants of arrest were withdrawn by the Prosecution following confirmation of their deaths. Regarding Mr Deif, the Prosecution indicated that it would continue to gather information on his reported death.  

ICC arrest warrants may be kept sealed or confidential, or made public. The arrest warrants in relation to the situation in the State of Palestine issued on 21 November 2024 have not been made public in order to protect victims and witnesses and to safeguard the investigations. However, as the Chamber considers it to be in the interest of victims and their families that they are made aware of the warrants’ existence and that “conduct similar to that addressed in the warrant of arrest appears to be ongoing”, the Chamber decided to release some information on these warrants.  

These three arrest warrants in relation to the situation in Palestine are part of a total of 31 pending arrest warrants, issued against 30 individuals by ICC judges. All States Parties to the Rome Statute, as well as those who have accepted the Court’s jurisdiction have the obligation to cooperate fully with the ICC in its investigation and prosecution of Rome Statute crimes (part 9 of the ICC Rome Statute).  

On 21 November, the Chamber also unanimously issued two decisions rejecting challenges by the State of Israel submitted under articles 18 and 19 of the Rome Statute on 26 September 2024, that can be accessed here and here, respectively.  

The Chamber considered that Israel’s acceptance of the Court’s jurisdiction was not required, as the Court can exercise its jurisdiction on the basis of territorial jurisdiction previously determined by ICC judges. The Chamber also 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.  

Concerning Israel’s second request related to the notification of the initiation of an investigation, the Chamber recalled that the Prosecution had notified Israel of the initiation of an investigation in 2021. At the time, Israel did not to pursue any request for deferral of the investigation. As the Chamber considered that the parameters of the investigation in the situation had remained the same, no new notification to the State of Israel was required.  

The International Criminal Court can exercise its jurisdiction with respect to Rome Statute crimes where the alleged perpetrator is a national of a State Party to the ICC Statute or when the alleged crime was committed on the territory of a State Party to the ICC statute. Similarly, a State that has not ratified the Rome Statute can accept the jurisdiction of the ICC (article 12.3 of the Rome Statute). 

 

#NGOVoices  

See here reactions from civil society: 

Al-Haq, Al Mezan Center for Human Rights (Al Mezan), and the Palestinian Centre for Human Rights (PCHR) welcomed the issuance of arrest warrants against Benjamin Netanyahu and Yoav Gallant as “a historic and pivotal moment in the battle against Israel’s impunity, in which the Palestinian people have been denied justice, and subjugated for decades under a genocidal, settler-colonial apartheid regime.” The organisations called on State Parties to the ICC Rome Statute to comply with the obligation to cooperate in arresting Netanyahu and Gallant  “in particular on European States because of their location and military and economic relations with Israel and the potential travel of Israeli officials therein”. 

 

The International Centre of Justice for Palestinians (ICJP) Director Tayab Ali, stated that “this is the most significant ruling in the history of international humanitarian law. The ICC just smashed Israel’s decades long impunity to pieces. It is now clear that there is a prima facie case for Israel to answer that it has committed war crimes on an industrial scale in Gaza. Those accused should be arrested and brought to face trial at the ICC immediately. No longer can States allied to Israel turn a blind eye to its belligerent occupation and war crimes in Palestine. “ 

B’Tselem affirmed that “Personal accountability for decision-makers is a key element in the struggle for justice and freedom for all human beings living between the Jordan River and the Mediterranean Sea. Therefore, all states parties to the court must respect the Pre-Trial Chamber’s decision and enforce the warrants.” 

“Cooperation by States Parties to the ICC Statute with the Court is essential for the delivery of its mandate and in particular for the execution of arrest warrants Mr Netanyahu, Mr Gallant and Mr Deif, and the other individuals still sought by the Court in its other investigations,” said Virginie Amato, Advocacy Director at the Coalition for the ICC.  “We call on all ICC State Parties to stand firmly with the Court and respect all ICC decisions. The ICC member states must unite in upholding and defending the Rome Statute's integrity and independence of the Court in face of any threats or coercive measures against the Court, its officials and those cooperating with it.”  

“The ICC arrest warrants against senior Israeli leaders and a Hamas official break through the perception that certain individuals are beyond the reach of the law. (...). These warrants should finally push the international community to address atrocities and secure justice for all victims in Palestine and Israel.” - Balkees Jarrah, Associate International Justice Director at Human Rights Watch. 

The International Federation for Human Rights (FIDH) welcomed the issuance of the arrest warrants and noted that " All States Parties to the ICC must commit to this. It’s a question of respecting decisions of independent international judges and respecting the international justice system. These are fundamental ways in which we can put an end to impunity". 

“It is long overdue and critical to ending the impunity that has fueled Israel’s genocide in Gaza and its other crimes, including the world’s longest illegal belligerent occupation,” affirmed the Center for Constitutional Rights. “Biden’s denunciation of the ICC – and his opposition to the accountability which Palestinian organizations and victims have long sought  – only deepens his own complicity in Israel’s crimes, including genocide. This will be his legacy.” CCR continued. 

 

Agnès Callamard, Amnesty International’s Secretary General, stated that “Prime Minister Netanyahu is now officially a wanted man. Following his indictment, as well as the indictments of Gallant and Mohammed al-Masri, commonly known as Mohammed Deif, ICC member states and the whole international community must stop at nothing until these individuals are brought to trial before the ICC’s independent and impartial judges. There can be no ‘safe haven’ for those alleged to have committed war crimes and crimes against humanity.” 

 

BACKGROUND ON THE SITUATION IN THE STATE OF PALESTINE 

On 1 January 2015, the government of the State of Palestine lodged a declaration under Article 12(3) of the Rome Statute of the ICC accepting the jurisdiction of the Court over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, 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 16 January 2015, the ICC Office of the Prosecutor (OTP) announced the opening of a preliminary examination into the situation in Palestine. 

On 22 May 2018, the State of Palestine referred the situation in Palestine for investigation to the ICC and specifically requested the Prosecutor "to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court's jurisdiction, committed in all parts of the territory of the State of Palestine." 

On 13 July 2018, ICC Pre Trial Chamber I (PTC I or the Chamber) ordered the Registry to establish a system of public information and outreach activities for the benefit of affected communities of the situation in Palestine. 

On 20 December 2019, then ICC Prosecutor Fatou Bensouda announced that her office has determined that there is reasonable basis to proceed with an investigation into alleged Rome Statute crimes committed in the situation in Palestine. As a State Party to the Rome Statute since 2015, Palestine formally referred the situation to the ICC Prosecutor on 22 May 2018, and therefore, the Prosecutor did not need to seek authorisation from the ICC Pre-Trial Chamber before proceeding to open an investigation. However, in January 2020, then ICC Prosecutor Bensouda requested PTC judges to rule on the Court’s territorial jurisdiction in this situation before proceeding to investigate, citing “the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted.”. 

On 20 February 2020, the Chamber allowed numerous actors including legal representatives of victims, States Parties, intergovernmental organisations, and amici curiae to provide observations. On 30 April 2020, the Prosecution filed a consolidated response to these observations and requested the Chamber “to confirm that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza.” 

On 5 February 2021, ICC Pre Trial Chamber I determined by majority that Palestine is a State Party and the Court may exercise its criminal jurisdiction in the Situation in Palestine, and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. In this majority ruling, the Chamber stressed that it was not determining whether Palestine fulfilled the requirements of statehood under public international law, or adjudicating a border dispute, or prejudging the question of any future borders; it was solely determining the scope of the Court's territorial jurisdiction for the purposes of the Rome Statute. These matters remain to be determined in bilateral discussions between Israeli and Palestinian authorities in the context of a negotiated agreement. 

On 3 March 2021, then ICC Prosecutor Fatou Bensouda announced the opening of an investigation on the Situation in Palestine,  concerning crimes within the jurisdiction of the Court that have been allegedly committed by members of the Israeli Defense Forces, Israeli authorities, Hamas and Palestinian armed groups since 13 June 2014 in the occupied Palestinian territory, including Gaza, the West Bank, and East Jerusalem. 

On 17 November 2023, the Office of the Prosecutor received a referral from the following five ICC States Parties: South Africa, Bangladesh, Bolivia, Comoros, and Djibouti. On receipt of the referral, ICC Prosecutor Khan stated that his Office “is presently conducting an investigation into the Situation in the State of Palestine” that commenced on 3 March 2021 and “extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023.”  On 18 January 2024, Chile and Mexico additionally submitted a referral to the ICC Prosecution and reiterated their commitment to cooperate with the Court. 

On 20 May 2024, the ICC Prosecutor filed applications for arrest warrants in the situation in the State of Palestine against five individuals, concerning war crimes and crimes against humanity allegedly committed since at least 7 October 2023 in Israel and the State of Palestine.  

On 10 June 2024, following the Prosecutor’s application, the United Kingdom (UK) requested the Chamber authorisation to provide written observations, under rule 103 of the Rules of Procedure and Evidence, on “[w]hether the Court can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords”.  On 27 June 2024, the Chamber granted the UK’s request to file observations and allowed for further requests for observations.  On 22 July 2024, the Chamber granted leave to provide observations by 6 August 2024 to most applicants. Amicus curiae observations were submitted from various actors including States, civil society organisations, international organisations, United Nations mandate holders,  academics and private citizens, as well as observations by the Office of Public Counsel for Victims and groups of legal representatives of victims pursuant to article 68(3). The UK did not file any observations. On 23 August, the Prosecution submitted a consolidated response to these observations, asking the Chamber to dismiss the observations and “urgently render its decisions” concerning the arrest warrants. 

On 9 August and 25 October 2024, the Chamber granted the withdrawal of applications for warrants of arrest for two other senior leaders of Hamas, Mr Ismail Haniyeh and Mr Yahya Sinwar following confirmation of their deaths. 

On 21 November 2024, the Chamber unanimously rejected the State of Israel’s challenges to its jurisdiction and issued arrest warrants in the Situation in the State of Palestine against Mr Benjamin Netanyahu, Mr Yoav Gallant and Mr Mohammed Diab Ibrahim Al-Masri (commonly known as ‘Deif’), for alleged war crimes and crimes against humanity committed from at least 7 October 2023 in the state of Israel & the state of Palestine. 

For further background