[D66] ICC warrants of arrest for Benjamin Netanyahu and Yoav Gallant

[Dr. Marc-Alexander Fluks]

Bron:  International Criminal Court (ICC)
Datum: 21 november 2024
URL:   
https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges


Situation in the State of Palestine: 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
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Today, on 21 November 2024, Pre-Trial Chamber I of the International 
Criminal Court ('Court'), in its composition for the Situation in the 
State of Palestine, unanimously issued two decisions rejecting 
challenges by the State of Israel ('Israel') brought under articles 18 
and 19 of the Rome Statute (the 'Statute'). It also issued warrants of 
arrest for Mr Benjamin Netanyahu and Mr Yoav Gallant.


Decisions on requests by the State of Israel

The Chamber ruled on two requests submitted by the Israel on 26 
September 2024. In the first request, Israel challenged the Court's 
jurisdiction over the Situation in the State of 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 Chamber to halt any proceedings 
before the Court in the relevant situation, including the consideration 
of the applications for warrants of arrest for Mr Benjamin Netanyahu and 
Mr Yoav Gallant, submitted by the Prosecution on 20 May 2024.

As to the first challenge, 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. Furthermore, the Chamber 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.

Decision on Israel's challenge to the jurisdiction of the Court pursuant 
to article 19(2) of the Rome Statute
https://www.icc-cpi.int/court-record/icc-01/18-374

The Chamber 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 Chamber 
considered that the parameters of the investigation in the situation 
have 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.

Decision on Israel's request for an order to the Prosecution to give an 
Article 18(1) notice
https://www.icc-cpi.int/court-record/icc-01/18-375


Warrants of arrest

The Chamber issued warrants of arrest for two individuals, Mr Benjamin 
Netanyahu and Mr Yoav 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', in order to protect 
witnesses and to safeguard the conduct of the investigations. However, 
the Chamber decided to release the information below since conduct 
similar to that addressed in the warrant of arrest appears to be 
ongoing. Moreover, the Chamber considers it to be in the interest of 
victims and their families that they are made aware of the warrants' 
existence.

At the outset, the Chamber considered that the alleged conduct of Mr 
Netanyahu and Mr Gallant falls within the jurisdiction of the Court. The 
Chamber recalled that, in a previous composition, it already decided 
that the Court's jurisdiction in the situation extended to Gaza and the 
West Bank, including East Jerusalem. Furthermore, the Chamber declined 
to use its discretionary proprio motu powers to determine the 
admissibility of the two cases at this stage. This is without prejudice 
to any determination as to the jurisdiction and admissibility of the 
cases at a later stage.

With regard to the crimes, the Chamber found reasonable grounds to 
believe that Mr Netanyahu, born on 21 October 1949, Prime Minister of 
Israel at the time of the relevant conduct, and Mr Gallant, born on 8 
November 1958, Minister of Defence of Israel 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 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.


Alleged crimes

The Chamber 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 Chamber also found that 
the law related to non-international armed conflict applied to the 
fighting between Israel and Hamas. The Chamber found that the alleged 
conduct of Mr Netanyahu and Mr 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, with regards to war crimes, the Chamber found it appropriate to 
issue the arrest warrants pursuant to the law of international armed 
conflict. The Chamber also found that the alleged crimes against 
humanity were part of a widespread and systematic attack against the 
civilian population of Gaza.

The Chamber considered that there are reasonable grounds to believe that 
both individuals intentionally and knowingly deprived the civilian 
population in Gaza of objects indispensable to their survival, including 
food, water, and medicine and medical supplies, as well as fuel and 
electricity, from at least 8 October 2023 to 20 May 2024. This finding 
is based on the role of Mr Netanyahu and Mr Gallant in impeding 
humanitarian aid in violation of international humanitarian law and 
their failure to facilitate relief by all means at its disposal. The 
Chamber found that their conduct led to the disruption of the ability of 
humanitarian organisations to provide food and other essential goods to 
the population in need in Gaza. The aforementioned restrictions together 
with cutting off electricity and reducing fuel supply also had a severe 
impact on the availability of water in Gaza and the ability of hospitals 
to provide medical care.

The Chamber also noted that decisions allowing or increasing 
humanitarian assistance into Gaza were often conditional. They were not 
made to fulfil Israel's obligations under international humanitarian law 
or to ensure that the civilian population in Gaza would be adequately 
supplied with goods in need. In fact, they were a response to the 
pressure of the international community or requests by the United States 
of America. In any event, the increases in humanitarian assistance were 
not sufficient to improve the population's access to essential goods.

Furthermore, the Chamber found reasonable grounds to believe that no 
clear military need or other justification under international 
humanitarian law could be identified for the restrictions placed on 
access for humanitarian relief operations. Despite warnings and appeals 
made by, inter alia, the UN Security Council, UN Secretary General, 
States, and governmental and civil society organisations about the 
humanitarian situation in Gaza, only minimal humanitarian assistance was 
authorised. In this regard, the Chamber considered the prolonged period 
of deprivation and Mr Netanyahu's statement connecting the halt in the 
essential goods and humanitarian aid with the goals of war.

The Chamber therefore found reasonable grounds to believe that Mr 
Netanyahu and Mr Gallant bear criminal responsibility for the war crime 
of starvation as a method of warfare.

The Chamber found that there are reasonable grounds to believe that the 
lack of food, water, electricity and fuel, and specific medical 
supplies, created conditions of life calculated to bring about the 
destruction of part of the civilian population in Gaza, which resulted 
in the death of civilians, including children due to malnutrition and 
dehydration. On the basis of material presented by the Prosecution 
covering the period until 20 May 2024, the Chamber could not determine 
that all elements of the crime against humanity of extermination were 
met. However, the Chamber did find that there are reasonable grounds to 
believe that the crime against humanity of murder was committed in 
relation to these victims.

In addition, by intentionally limiting or preventing medical supplies 
and medicine from getting into Gaza, in particular anaesthetics and 
anaesthesia machines, the two individuals are also responsible for 
inflicting great suffering by means of inhumane acts on persons in need 
of treatment. Doctors were forced to operate on wounded persons and 
carry out amputations, including on children, without anaesthetics, 
and/or were forced to use inadequate and unsafe means to sedate 
patients, causing these persons extreme pain and suffering. This amounts 
to the crime against humanity of other inhumane acts.

The Chamber also found reasonable grounds to believe that the 
abovementioned conduct deprived a significant portion of the civilian 
population in Gaza of their fundamental rights, including the rights to 
life and health, and that the population was targeted based on political 
and/or national grounds. It therefore found that the crime against 
humanity of persecution was committed.

Finally, the Chamber assessed that there are reasonable grounds to 
believe that Mr Netanyahu and Mr Gallant bear criminal responsibility as 
civilian superiors for the war crime of intentionally directing attacks 
against the civilian population of Gaza. In this regard, the Chamber 
found that the material provided by the Prosecution only allowed it to 
make findings on two incidents that qualified as attacks that were 
intentionally directed against civilians. Reasonable grounds to believe 
exist that Mr Netanyahu and Mr Gallant, despite having measures 
available to them to prevent or repress the commission of crimes or 
ensure the submittal of the matter to the competent authorities, failed 
to do so.


Background

On 1 January 2015, The State of Palestine lodged a declaration under 
article 12(3) of the Rome Statute accepting 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.

For further information, please contact Fadi El Abdallah, Spokesperson 
and Head of Public Affairs Unit, International Criminal Court, by 
telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: 
fadi.el-abdallah at icc-cpi.int

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