Dozens of legal briefs filed to ICC on jurisdiction to prosecute Netanyahu, Gallant
US argues that under Oslo Accords, Palestinians agreed that they don’t have criminal jurisdiction over Israeli nationals; deliberations likely to delay decision on warrants
Dozens of countries, academics and rights groups have filed legal arguments this week either rejecting or supporting the International Criminal Court’s power to issue arrest warrants in its investigation into the war between Israel and the Hamas terror group in Gaza.
The submissions come as a panel of judges considers a request filed in May by the court’s chief prosecutor for warrants against Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and three Hamas leaders, only one of which, Yahya Sinwar, is still alive.
The slew of written submissions about Khan’s requests is likely to delay a decision by the panel of judges tasked with deciding whether to issue the arrest warrants.
The court’s prosecutor, Karim Khan, is seeking warrants against Israel’s premier and defense chief on charges that Israel has targeted civilians in Gaza and used starvation as a method of war.
Israel strongly rejects the accusations, pointing to the relatively low civilian-to-combatant ratio among the casualties in Gaza, noting the terror group’s use of civilians as human shields, and highlighting its efforts to expand humanitarian aid into the enclave, where it is often looted by gangs and terror groups.
Khan also sought to issue arrest warrants for Hamas leaders Muhammad Deif, Ismail Haniyeh and Yahya Sinwar, alleging crimes against humanity, including murder, hostage-taking and torture, both during the war and in the October 7 onslaught that started the war, when thousands of Hamas-led terrorists burst into southern Israel, killing some 1,200 people and taking 251 hostages.
Deif, then the commander of Hamas’s military wing, was killed in an Israeli airstrike in the southern Gaza Strip last month, according to Israel. Haniyeh, then the group’s political leader, was assassinated in Tehran last week, in a blast for which Israel has not claimed responsibility.
Sinwar, an architect of the October 7 attack, was named as Haniyeh’s successor.
Most of the legal arguments focus largely on the issue of whether the court’s power to issue warrants for Israeli leaders is overruled by a provision of the 1993 Oslo Accords peace deal. As part of the deal, the Palestinians agreed that they don’t have criminal jurisdiction over Israeli nationals.
Among more than 50 filings, the opinions are divided over whether, under the terms of the deal, Palestinians can delegate the power to issue arrest warrants to the court.
Israel didn’t file written arguments, but its staunch ally, the United States, did, arguing that the Oslo Accords “preserved in Israel exclusive jurisdiction over acts committed by Israeli nationals. Therefore, the Palestinians could not have delegated to the Court jurisdiction they never had.”
Others cautioned judges against accepting that reading of the accords.
“The ‘delegation’ theory would shatter the Court’s jurisdiction into 124 fragments, irregularly shaped by thousands of national laws and international agreements,” wrote Adil Haque, a professor of law at Rutgers University in Newark, New Jersey.
In 2021, the court’s Pre-Trial Chamber I controversially ruled that, despite the State of Palestine not being a sovereign state, the ICC did have jurisdiction over any alleged violations of the Rome Statute, the ICC’s foundational charter, in the West Bank, East Jerusalem and Gaza.
Some international law experts, such as lawyer Owiso Owiso, said that he believes the issue “was already determined authoritatively in 2021 and ought not to have been resurrected.”
“Really, this is merely an academic exercise at best, and one massive waste of time and resources at worst,” he added.
The ICC has 124 member states, including the State of Palestine. Israel and the United States are not members and do not accept the jurisdiction.
The Palestinians argued in their written filing that accepting the argument “would usher in a new and retrogressive era of international order where politics and impunity prevail over justice and accountability.”
The United Kingdom was the first country to seek to file a written brief, but withdrew its request late last month after new Prime Minister Keir Starmer took office after winning a landslide election victory over the Conservative Party of Rishi Sunak, whose administration filed its request in June.
But the UK request triggered a host of other filings that are now under consideration.
The criminal case at the ICC is separate from an ongoing dispute at the International Court of Justice, which also is based in The Hague. In the ICJ case, South Africa, a longtime ally of the Palestinians, has accused Israel of genocide in the war in Gaza. That case is likely to take years to settle. Israel firmly denies the allegations.
