On this day, 21 November 2024, Pre-Trial Chamber I of the International Criminal Court ("the Court"), composed of the the situation in the State of Palestine, unanimously issued two decisions rejecting the State of Israel's ("Israel") objections under Articles 18 and 19 of the Rome Statute ("the Statute"). It also issued arrest warrants for Benjamin Netanyahu and Yoav Gallant.
Decisions on applications by the State of Israel
On 26 September 2024, the Board decided on two applications submitted by Israel. In the first application, Israel challenged the jurisdiction of the Tribunal to deal with the situation in the State of Palestine in general and more specifically to address situation Israeli nationals under Article 19(2) of the Statute. In the second request, Israel requested that the Chamber order the Prosecution to submit a new notice of investigation to its authorities pursuant to Article 18(1) of the Statute. Israel also requested the Chamber to stay all proceedings before the Court in the present situation, including the consideration of the applications for the issuance of arrest warrants for Benjamin Netanyahu and Yoav Gallant, which were submitted by the Prosecution on 20 May 2024.
As to the first challenge, the Chamber held that recognition of the jurisdiction of the Court by Israel was not required, since the Court could exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine, as determined by the previous Chamber I. The Chamber further held that, under Article 19(1) of the Statute, States are not entitled to challenge the jurisdiction of the Court under Article 19(2) prior to the issuance of an arrest warrant. Israel's objection is therefore premature. This is without prejudice to any future objections to the jurisdiction of the Tribunal and/or the admissibility of any particular case.
The Chamber also rejected Israel's request under Article 18(1) of the Statute. The Chamber recalled that the Prosecution notified Israel of the commencement of the investigation in 2021. At that time, despite the Prosecution's request for clarification, Israel decided not to pursue its request for a stay of the investigation. Further, the Chamber considered that the parameters of the investigation remained the same in that situation and, as a result, no new notification to the State of Israel was required. In view of this, the judges found that there was no reason to stop the consideration of the application for the issuance of the arrest warrant.
Arrest warrants
The Chamber issued arrest warrants for two individuals, Benjamin Netanyahu and Yoav Gallant, for crimes against humanity and war crimes committed from at least October 8, 2023, to at least May 20, 2024, the date of the Prosecution's warrant application.
The warrants are classified as "secret" to protect witnesses and ensure the conduct of the investigation. However, the Chamber has decided to disclose the information below because it appears that conduct similar to that which is the subject of the warrant is still ongoing. In addition, the Chamber believes that it is in the interest of the victims and their families to be informed of the existence of the warrants.
At the outset, the Chamber considered that the alleged conduct of Mr Netanyahu and Mr Gallant fell within the jurisdiction of the Court. The Chamber recalled that it had decided in a previous composition that the Court's jurisdiction in the present situation extended to the Gaza Strip and the West Bank, including East Jerusalem. In addition, the Chamber declined to exercise its discretionary powers proprio motu to determine the admissibility of both cases at this stage. This is without prejudice to any determination of jurisdiction and admissibility of the cases at a later stage.
As to the offences, the Chamber finds reasonable grounds to believe that Mr. Netanyahu, born 21 October 1949, Prime Minister of Israel at the time of the relevant hearing, and Mr. Gallant, born 8 October 1949, Prime Minister of Israel at the time of the relevant hearing, and Mr. November 1958, the Minister of Defence of Israel at the time of the alleged conduct, are criminally responsible for the following crimes as accomplices for having committed the acts together with other persons: the war crime of starvation as a method of warfare; and crimes against humanity of murder, persecution and other inhumane acts.
The Chamber also finds reasonable grounds to believe that Mr. Netanyahu and Mr. Gallant are criminally liable as civilian superiors for the war crime of intentionally directing an attack against a civilian population.
Alleged crimes
The Chamber found reasonable grounds to believe that international humanitarian law relating to the international armed conflict between Israel and Palestine was applicable at the relevant time. This is because the two high contracting parties to the 1949 Geneva Conventions are involved and Israel occupies at least part of Palestine. The Chamber also found that the law relating to non-international armed conflict applied to the fighting between Israel and Hamas. The Chamber found that the alleged conduct of Netanyahu and Gallant concerned actions by Israeli government authorities and armed forces against civilians in Palestine, specifically civilians in Gaza. It thus concerned the relationship between two parties to an international armed conflict, as well as the relationship between the occupying power and the population in the occupied territory. For these reasons, as regards war crimes, the Chamber considered it appropriate to issue arrest warrants under 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 were reasonable grounds to believe that the two individuals deliberately and knowingly deprived the civilian population in Gaza of items necessary for survival, including food, water 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 Netanyahu and Gallant in obstructing humanitarian assistance in violation of international humanitarian law and failing to facilitate assistance by all available means. The Chamber found that their actions led to the disruption of the ability of humanitarian organizations to provide food and other essential goods to the needy population in Gaza. The aforementioned restrictions, together with the interruption of electricity and fuel supplies, also had a serious impact on the availability of water in Gaza and the ability of hospitals to provide medical care.
The Chamber also noted that decisions to allow or increase humanitarian aid to Gaza were often conditional. They were not taken with a view to meeting Israel's obligations under international humanitarian law or to ensuring that the civilian population in Gaza was adequately supplied with necessary goods. In fact, it was in response to pressure from the international community or requests from the United States. In any case, the increase in humanitarian aid was not sufficient to improve the population's access to basic goods.
Moreover, the Chamber found reasonable grounds to believe that no clear military necessity or other justification under international humanitarian law could be found for restricting access to humanitarian relief operations. Despite warnings and appeals, among other things by the UN Security Council, the UN Secretary-General, states and governmental and civil society organisations regarding the humanitarian situation in Gaza, only minimal humanitarian assistance has been authorized. In this regard, the Chamber took into account the extended period of shortages and the statement by Mr. Netanyahu linking the cessation of the delivery of essential goods and humanitarian aid to the objectives of the war.
The Chamber therefore finds 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 living conditions that were calculated to lead to the destruction of a portion of the civilian population in Gaza, resulting in the death of civilians, including children, due to malnutrition and dehydration. Based on the material submitted by the Prosecution, which covered the period up to 20 May 2024, the Chamber could not determine that all the elements of the crime against humanity of extermination were met. However, the Chamber finds that there are reasonable grounds to believe that the crime against humanity of extermination was committed in relation to these victims.
Furthermore, by deliberately restricting or preventing medical supplies and medicines, particularly anaesthetic drugs and anaesthetic machines, from reaching Gaza, both persons are also responsible for causing great suffering by inhuman acts to persons in need of treatment. Doctors were forced to operate on injured persons and perform amputations, including on children, without anesthetics and/or were forced to use inadequate and dangerous means to sedate patients, causing extreme pain and suffering to these persons. This amounts to a crime against humanity consisting of other inhumane acts.
The Chamber also finds reasonable grounds to believe that the above conduct has deprived a significant part of the civilian population in Gaza of their fundamental rights, including the right to life and health, and that this population has been targeted for political and/or national reasons. He therefore found that a crime against humanity of persecution had been committed.
Finally, the Chamber assessed that there are reasonable grounds to believe that Netanyahu and Gallant are criminally liable as civilian superiors for the war crime of intentionally conducting attacks against the civilian population of Gaza. In this regard, the Chamber noted that the material provided by the Prosecution enabled it to make findings on only two incidents that qualified as attacks intentionally conducted against the civilian population. There are reasonable grounds to believe that Mr. Netanyahu and Mr. Gallant, although they had measures available to them to prevent or suppress the commission of the crimes or to ensure that the matter was handed over to the competent authorities, failed to do so.
Background
On 1 January 2015, the State of Palestine made a declaration under Article 12(3) of the Rome Statute accepting the jurisdiction of the Court as of 13 June 2014.
On 2 January 2015, the State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the Secretary-General of the United Nations. The Rome Statute entered into force for the State of Palestine on 1 April 2015.
On 22 May 2018, the State of Palestine, pursuant to Article 13(a) and Article 14 of the Rome Statute, transmitted to the Prosecutor the situation since 13 June 2014 without a definitive date.
On 3 March 2021, the Prosecutor announced the opening of an investigation into the situation in the State of Palestine. This followed the decision Pre-Trial Chamber I from on 5 February 2021 that the Court may exercise its criminal jurisdiction in the Situation and that the territorial scope of that jurisdiction extends, for the most part, to Gaza and the West Bank, including East Jerusalem.
On 17 November 2023, the Office of the Attorney General received additional referrals regarding 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 States additionally submitted referrals to the Attorney General regarding the situation in the State of Palestine.
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