On November 21, 2024, the Worldwide Prison Court docket’s (Court docket or ICC) Pre-Trial Chamber I, consisting of three judges from Benin, France, and Slovenia, voted unanimously to situation arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Protection Minister Yoav Gallant for struggle crimes and crimes in opposition to humanity, approving a request for warrants filed by the ICC’s Workplace of the Prosecutor on Could 20, 2024. See “Press Launch: Scenario within the State of Palestine: ICC Pre-Trial Chamber I … points warrants of arrest for Benjamin Netanyahu and Yoav Gallant (Nov. 21, 2024) (ICC Netanyahu Press Launch). On the identical day the Court docket additionally introduced it had issued an arrest warrant for the Hamas navy chief Mohammed Deif, for varied struggle crimes and crimes in opposition to humanity. Deif was reportedly killed earlier in 2024, and the warrant shall be withdrawn if his loss of life is confirmed.
Underneath the Rome Statute which governs the Court docket’s proceedings, for an arrest warrant to situation, the Pre-Trial Chamber should be happy there are “cheap grounds to consider that the individual has dedicated a criminal offense inside the jurisdiction of the Court docket.” Rome Statute of the ICC (Statute or Rome Statute), artwork. 58(1)(a). Whereas the warrants in opposition to the Israeli officers have been issued below seal, in a press launch asserting the Pre-Trial Chamber’s choice, the ICC famous there have been “cheap grounds to consider” that Netanyahu and Gallant “bear legal duty” as “co-perpetrators” for “the struggle crime of hunger as a way of warfare,” in addition to “the crimes of humanity of homicide, persecution, and different inhumane acts,” and bear duty,” and as civil superiors” for the “struggle crime of deliberately directing an assault in opposition to the civilian inhabitants.” See ICC Netanyahu Press Launch. For the interval till Could 20, 2024, the Chamber acknowledged that at this level it “couldn’t decide” that the “parts of the crime in opposition to humanity of extermination have been met.”
Underneath the Statute, as soon as a warrant is issued the ICC can “transmit a request for the arrest and give up” of the individual topic to the warrant. Rome Statute, artwork. 89(1). State events to the Statute “shall” adjust to such requests. Id. Requests needs to be made “to any State on the territory of which that individual could also be discovered.” Id. State Events that don’t “adjust to a request to cooperate” in such a manner that’s “opposite to the provisions” of the Statute, together with by refusing to execute arrest warrants below Article 89, could also be referred “to the Meeting of State Events.” Rome Statute, artwork. 87(7).
Because the warrant is secret, we can not know for sure which steps, if any, the ICC has taken to hunt Netanhayu’s and Gallant’s arrest. Nevertheless, the case of Omar Al Bashir, the previous President of Sudan who was topic to an ICC arrest warrant whereas in workplace, is instructive. In that occasion, the Court docket’s Pre-Trial Chamber II first issued an arrest warrant on March 4, 2009, after which issued an arrest and give up request to the Republic of Sudan on March 5, 2009. See Prosecutor v. Al Bashir, ICC-02/05-01/09, Request to the Republic of Sudan for the Arrest and Give up of Omar Al Bashir (Mar. 5, 2009). On March 6, an arrest and give up request was issued to “all state events to the Rome Statute.” See Prosecutor v. Al Bashir, ICC-02/05-01/09, Request to All State Events to the Rome Statute for the Arrest and Give up of Omar Al Bashir (Mar. 6, 2009). Periodically thereafter, the ICC would make requests to particular international locations that weren’t state events to the Statute upon perception that Al Bashir could be touring there. See Prosecutor v. Al Bashir, ICC-02/05-01/09, Request for the Arrest and Give up of Omar Al Bashir to the Republic of India (Oct. 26, 2015). If the Court docket adopted the same timeline for the Netanyahu and Gallant warrants, then requests for arrest and give up would have already been made to Israel and to all 124 state events to the Rome Statute.
ICC Jurisdiction Over Israeli Actions in Palestine?
Israel just isn’t a state social gathering to the Rome Statute, and it’s not prone to honor any request to arrest and give up Netanyahu and Gallant. Certainly, Israel, by way of its Workplace of the Lawyer Normal, is presently attempting to get the warrant thrown out by difficult the ICC’s jurisdiction. See Scenario within the State of Palestine, ICC-01/18, Attraction of “Resolution on Israel’s problem to the jurisdiction of the Court docket pursuant to article 19(2) of the Rome Statute” (ICC-01/18-374) (Dec. 13, 2024). As a result of Israel just isn’t social gathering to the Rome Statute, and the case was not referred by the UN Safety Council, the ICC’s jurisdiction over actions in Gaza is rooted within the accession of Palestine to the Rome Statute. See Rome Statute, artwork. 12(2)(a). Particularly, “[T]he Court docket could train its jurisdiction” if “[t]he State on the territory of which the conduct in query occurred,” is a state social gathering to the Statute. The Court docket’s Pre-Trial Chamber I concluded in 2021 that Palestine was in a position to grow to be a state social gathering. See Scenario within the State of Palestine, ICC-01/18, Resolution on the Prosecution request pursuant to article 19(3) for a ruling on the Court docket’s territorial jurisdiction in Palestine (Feb. 5, 2021) (hereafter ICC Palestine Jurisdictional Resolution). The Chamber reasoned that “a willpower by the [UN] Normal Meeting renders an entity succesful to accede” to the Rome Statute, and that by way of Decision 67/19 the Normal Meeting “has accepted Palestine as a . . . State within the United Nations,” and because of this, it “would be capable of grow to be social gathering to any treaties” which are open to “any State,” such because the Rome Statute. Id. at ¶¶ 97–98.
Considerably, the Chamber’s 2021 ruling famous it was “restricted to defining the territorial parameters of the Prosecutor’s investigation in accordance with the Statute . . . [and] with out prejudice to any issues of worldwide legislation arising from the occasions within the Scenario in Palestine [matter] that don’t fall inside the Court docket’s jurisdiction.” Id. at ¶ 130. Furthermore, the ruling was relevant solely to the initiation of an investigation, “[w]hen the Prosecutor submits an utility for the issuance of a warrant of arrest or summons to look below Article 58 of the Statute, or if a State or suspect submits a problem below article 19(2) of the Statute, the Chamber shall be ready to look at additional requestions of jurisdiction which can come up at that cut-off date.” Id. at ¶ 131.
Within the current controversy, Israel took up the Chamber’s invitation and challenged the ICC’s jurisdiction below Article 19(2) of the Rome Statute, which permits a “state from which acceptance of jurisdiction is required below article 12,” to problem the admissibility of a case. Rome Statute, artwork. 19(2)(c). Israel famous that the 2021 choice “didn’t think about it obligatory” to find out whether or not Palestine “constituted a State below common worldwide legislation, or to make a willpower as to its territorial sovereignty and borders.” Scenario within the State of Palestine, ICC-01/18, Public Redacted Model of “Israel’s problem to the jurisdiction of the Court docket pursuant to article 19(2) of the Rome Statute, (ICC-01/18-354-AnxII-Corr) at ¶ 64 (Sept. 23, 2024) (Israel Jurisdiction Temporary) Israel additional famous that “UN Normal Meeting decision are by nature non-binding,” and that the Normal Meeting decision in query “doesn’t purport to find out territorial boundaries,” on condition that it particularly requires negotiations to resolve disputes associated to borders. Id. at n.75. Certainly, within the decision the Normal Meeting “[e]xpresses the pressing want for the resumption of acceleration of negotiations . . . between the Palestinian and Israel sides that resolves all excellent core points,” together with “borders.” G.A. Res. 67/19, at 4 (Nov. 29, 2012).
Additional, Israel argued that accession to the Rome Statute below Article 12(2) relies on “conventional bases of territorial and private jurisdiction” regulated by “public worldwide legislation.” Israel Jurisdiction Temporary at ¶ 76. The temporary goes on to argue that Palestine didn’t train sovereign management over their territory, given it was managed by the Ottoman Empire after which a British Mandate. Id. at 80–81. Bilateral agreements between Israel and the PLO entered into within the Nineteen Nineties “explicitly acknowledged that the standing of the [Palestinian] territory could be settled by way of everlasting standing negotiations,” which have but to end in a remaining settlement. Id. at ¶ 82. As such, “the Palestinian authorities can solely delegate to the Court docket the legal jurisdictional competence that they really possess,” which is outlined within the Oslo Accords. Id. at ¶¶ 85–86. The Court docket’s jurisdiction in Palestine may “not exceed the restricted competences . . . transferred to the Palestinian Authority pursuant to Oslo Accords that created it,” and famous the Accords present “that Palestinian authorities don’t have any jurisdiction over Israel’s in any sphere, together with the sphere of legal jurisdiction.” Id. at ¶ 67, 90. Underneath the settlement Israel has “sole” legal jurisdiction “over offenses dedicated within the territory below Palestinian authority by Israelis.” Id. at ¶ 91.
The Chamber in 2021 expressly declined to deal with the Oslo Accords, which give that the Palestinian Authority’s jurisdiction solely applies to “offenses dedicated by Palestinians and/or non-Israelis” in Palestine. ICC Palestine Jurisdictional Resolution at ¶ 125. The Chamber then concluded that arguments associated to the Accords “within the context of the current proceedings usually are not pertinent to the decision of the problem into account” and could also be raised “by States based mostly on article 19 of the Statute, reasonably than in relation to a query of jurisdiction in reference to the initiation of an investigation by the Prosecutor.” Id. at ¶ 129.
Regardless of declining to deal with the query of jurisdiction relating to arrest warrants and the Oslo Accords in 2021, in 2024 the Pre-Trial Chamber rejected Israel’s try to deal with these questions–ruling the nation didn’t have standing to file its jurisdictional problem within the first place and concluding that Israel’s acceptance of jurisdiction below Article 12(3) was not required, “because the Court docket can train its jurisdiction on the premise of the territorial jurisdiction of Palestine.” See Scenario within the State of Palestine, ICC-01/18, Resolution on Israel’s problem to the jurisdiction of the Court docket pursuant to article 19(2) of the Rome Statute, ¶ 13 (Nov. 21, 2024). Israel is interesting this choice to the ICC’s five-member Appeals Chamber, asking the Appeals Chamber to remand the matter again to the Pre-Trial Chamber to contemplate Israel’s jurisdictional arguments on the deserves.
Does the ICC Must Acknowledge Head of State Immunity Underneath Customary Worldwide Legislation?
However Israel’s jurisdictional enchantment earlier than the Appeals Chamber, the 124 State Events to the Rome Statute should determine to what extent they’ll adjust to the arrest warrant issued in opposition to the Israeli officers. It will require consideration of points associated to move of state immunity.
The Court docket most not too long ago confronted this situation in 2024, when Russian President Vladimir Putin, presently the topic of an ICC arrest warrant, traveled to Mongolia, which is a state social gathering to the Statute. In proceedings within the Pre-Trial Chamber following Mongolia’s failure to arrest Putin, Mongolia asserted that below customary worldwide legislation, Putin is entitled to head-of-state official immunity. Scenario in Ukraine, ICC-01/22, Discovering below article 87(7) of the Rome Statute of non-compliance by Mongolia with the request by the Court docket to cooperate within the arrest and give up of Vladimir Vladimirovich Putin, ¶ 6 (Oct. 24, 2024) (ICC Mongolia Discovering). The Pre-Trial Chamber famous, nonetheless, that below Article 27 of the Rome Statute, “official capability as a Head of State or Authorities . . . shall in no case exempt an individual from legal duty below this statute.” Rome Statute, artwork. 27(1). Furthermore, the Court docket can “train its jurisdiction” over such a nationwide chief with out regard to “[i]mmunities . . . whether or not below nationwide or worldwide legislation.” Rome Statute, artwork. 27(2). The Pre-Trial Chamber additional reasoned that the ICC is tasked “with exercising its jurisdiction on grave crimes of worldwide concern that threaten the peace and safety . . . of the worldwide neighborhood as an entire.” ICC Mongolia Discovering at ¶ 28. With this scope, “such a multilateral obligation can’t be altered or outmoded by . . . commitments that will battle with the Rome Statute’s aims.” Id. Additional, the Chamber maintained, the Court docket “just isn’t solely indisputably worldwide in nature but in addition inherently impartial of State affect.” Id. at ¶ 31. This vertical relationship “supersedes conventional interstate immunity ideas.” Id.
Mongolia countered that Article 98 of the Statute supplies that the ICC “could not proceed with a request for give up for help which might require the requested State to behave inconsistently with its obligations below worldwide legislation with respect to the State or diplomatic immunity of an individual . . . of a 3rd state.” Rome Statute, artwork. 98(1). Within the Chamber’s view, Article 27 “represents a major obligation inside the statutory framework,” and performs a “important position in selling accountability for severe crime.” Id. at ¶ 34. Subsequently, Article 98 “doesn’t and couldn’t undermine the basic ideas codified in article 27, on which your complete Court docket’s system stands.” Id. Article 98 is a “purely procedural provision” which “refers solely to the acts of presidency actions that are sometimes carried out overseas and are protected by the safeguards on diplomatic immunity for sure officers and budlings.” Id. at ¶ 35. Article 98 “doesn’t handle the immunity of the Head of State, however that of the State per se,” and applies solely to diplomatic missions and paperwork which belong to a 3rd State, which “is probably not seized with out the consent of that State.” Id.
State events to the Rome Statue in Europe have adopted various stances as to whether or not they would implement a warrant. The Dutch International Minister, for instance, mentioned the Netherlands would comply because the nation “implements the Rome Statute 100%.” See Netanyahu arrest warrant: The place can he nonetheless go in Europe? Politico (Nov. 22, 2024). Officers in Austria, Belgium, Eire, Slovenia, and Spain have additionally indicated they might arrest Netanyahu. The French International Ministry, then again, issued a press release that “a State can’t be required to behave inconsistently with its obligations below worldwide legislation with respect to the immunities of States not social gathering to the ICC,” and that such immunities apply to Netanyahu. See Assertion: French Ministry for Europe and International Affairs (Nov. 27, 2024). Different states, like Germany and Italy, have expressed common assist for the ICC however have been noncommittal as to imposing the precise warrants. Politico (Nov. 22, 2024). As to Israel itself, the nation’s authorized filings with the ICC haven’t addressed head-of-state immunity, and the Lawyer Normal’s public statements have targeted on arguing for the ICC’s lack of jurisdiction within the first occasion. See No “outrageous” choice will cease me, says Netanyahu about ICC arrest warrant, The Jerusalem Put up (Nov. 22, 2024).
