International Criminal Court Issues Arrest Warrants Against Israeli Prime Minister Netanyahu and Former Defense Minister Gallant | Samuel Estreicher | Verdict

On November 21, 2024, the International Criminal Court’s (Court or ICC) Pre-Trial Chamber I, consisting of three judges from Benin, France, and Slovenia, voted unanimously to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity, approving a request for warrants filed by the ICC’s Office of the Prosecutor on May 20, 2024. See “Press Release: Situation in the State of Palestine: ICC Pre-Trial Chamber I … issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant (Nov. 21, 2024) (ICC Netanyahu Press Release). On the same day the Court also announced it had issued an arrest warrant for the Hamas military leader Mohammed Deif, for various war crimes and crimes against humanity. Deif was reportedly killed earlier in 2024, and the warrant will be withdrawn if his death is confirmed.

Under the Rome Statute which governs the Court’s proceedings, for an arrest warrant to issue, the Pre-Trial Chamber must be satisfied there are “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.” Rome Statute of the ICC (Statute or Rome Statute), art. 58(1)(a). While the warrants against the Israeli officials were issued under seal, in a press release announcing the Pre-Trial Chamber’s decision, the ICC noted there were “reasonable grounds to believe” that Netanyahu and Gallant “bear criminal responsibility” as “co-perpetrators” for “the war crime of starvation as a method of warfare,” as well as “the crimes of humanity of murder, persecution, and other inhumane acts,” and bear responsibility,” and as civil superiors” for the “war crime of intentionally directing an attack against the civilian population.” See ICC Netanyahu Press Release. For the period until May 20, 2024, the Chamber stated that at this point it “could not determine” that the “elements of the crime against humanity of extermination were met.”

Under the Statute, once a warrant is issued the ICC can “transmit a request for the arrest and surrender” of the person subject to the warrant. Rome Statute, art. 89(1). State parties to the Statute “shall” comply with such requests. Id. Requests should be made “to any State on the territory of which that person may be found.” Id. State Parties that do not “comply with a request to cooperate” in such a way that is “contrary to the provisions” of the Statute, including by refusing to execute arrest warrants under Article 89, may be referred “to the Assembly of State Parties.” Rome Statute, art. 87(7).

As the warrant is secret, we cannot know for certain which steps, if any, the ICC has taken to seek Netanhayu’s and Gallant’s arrest. However, the case of Omar Al Bashir, the former President of Sudan who was subject to an ICC arrest warrant while in office, is instructive. In that instance, the Court’s Pre-Trial Chamber II first issued an arrest warrant on March 4, 2009, and then issued an arrest and surrender 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 Surrender of Omar Al Bashir (Mar. 5, 2009). On March 6, an arrest and surrender request was issued to “all state parties to the Rome Statute.” See Prosecutor v. Al Bashir, ICC-02/05-01/09, Request to All State Parties to the Rome Statute for the Arrest and Surrender of Omar Al Bashir (Mar. 6, 2009). Periodically thereafter, the ICC would make requests to specific countries that were not state parties to the Statute upon belief that Al Bashir would be traveling there. See Prosecutor v. Al Bashir, ICC-02/05-01/09, Request for the Arrest and Surrender of Omar Al Bashir to the Republic of India (Oct. 26, 2015). If the Court followed a similar timeline for the Netanyahu and Gallant warrants, then requests for arrest and surrender would have already been made to Israel and to all 124 state parties to the Rome Statute.

ICC Jurisdiction Over Israeli Actions in Palestine?

Israel is not a state party to the Rome Statute, and it is not likely to honor any request to arrest and surrender Netanyahu and Gallant. Indeed, Israel, through its Office of the Attorney General, is currently trying to get the warrant thrown out by challenging the ICC’s jurisdiction. See Situation in the State of Palestine, ICC-01/18, Appeal of “Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute” (ICC-01/18-374) (Dec. 13, 2024). Because Israel is not party to the Rome Statute, and the case was not referred by the UN Security Council, the ICC’s jurisdiction over actions in Gaza is rooted in the accession of Palestine to the Rome Statute. See Rome Statute, art. 12(2)(a). Specifically, “[T]he Court may exercise its jurisdiction” if “[t]he State on the territory of which the conduct in question occurred,” is a state party to the Statute. The Court’s Pre-Trial Chamber I concluded in 2021 that Palestine was able to become a state party. See Situation in the State of Palestine, ICC-01/18, Decision on the Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (Feb. 5, 2021) (hereafter ICC Palestine Jurisdictional Decision). The Chamber reasoned that “a determination by the [UN] General Assembly renders an entity capable to accede” to the Rome Statute, and that through Resolution 67/19 the General Assembly “has accepted Palestine as a . . . State in the United Nations,” and as a result, it “would be able to become party to any treaties” that are open to “any State,” such as the Rome Statute. Id. at ¶¶ 97–98.

Significantly, the Chamber’s 2021 ruling noted it was “limited to defining the territorial parameters of the Prosecutor’s investigation in accordance with the Statute . . . [and] without prejudice to any matters of international law arising from the events in the Situation in Palestine [matter] that do not fall within the Court’s jurisdiction.” Id. at ¶ 130. Moreover, the ruling was applicable only to the initiation of an investigation, “[w]hen the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under Article 58 of the Statute, or if a State or suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further requestions of jurisdiction which may arise at that point in time.” Id. at ¶ 131.

In the present controversy, Israel took up the Chamber’s invitation and challenged the ICC’s jurisdiction under Article 19(2) of the Rome Statute, which allows a “state from which acceptance of jurisdiction is required under article 12,” to challenge the admissibility of a case. Rome Statute, art. 19(2)(c). Israel noted that the 2021 decision “did not consider it necessary” to determine whether Palestine “constituted a State under general international law, or to make a determination as to its territorial sovereignty and borders.” Situation in the State of Palestine, ICC-01/18, Public Redacted Version of “Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute, (ICC-01/18-354-AnxII-Corr) at ¶ 64 (Sept. 23, 2024) (Israel Jurisdiction Brief) Israel further noted that “UN General Assembly resolution are by nature non-binding,” and that the General Assembly resolution in question “does not purport to determine territorial boundaries,” given that it specifically calls for negotiations to resolve disputes related to borders. Id. at n.75. Indeed, in the resolution the General Assembly “[e]xpresses the urgent need for the resumption of acceleration of negotiations . . . between the Palestinian and Israel sides that resolves all outstanding core issues,” including “borders.” G.A. Res. 67/19, at 4 (Nov. 29, 2012).

Further, Israel argued that accession to the Rome Statute under Article 12(2) is predicated on “traditional bases of territorial and personal jurisdiction” regulated by “public international law.” Israel Jurisdiction Brief at ¶ 76. The brief goes on to argue that Palestine did not exercise sovereign control over their territory, given it was controlled by the Ottoman Empire and then a British Mandate. Id. at 80–81. Bilateral agreements between Israel and the PLO entered into in the 1990s “explicitly stated that the status of the [Palestinian] territory would be settled through permanent status negotiations,” which have yet to result in a final agreement. Id. at ¶ 82. As such, “the Palestinian authorities can only delegate to the Court the criminal jurisdictional competence that they actually possess,” which is defined in the Oslo Accords. Id. at ¶¶ 85–86. The Court’s jurisdiction in Palestine could “not exceed the restricted competences . . . transferred to the Palestinian Authority pursuant to Oslo Accords that created it,” and noted the Accords provide “that Palestinian authorities have no jurisdiction over Israel’s in any sphere, including the sphere of criminal jurisdiction.” Id. at ¶ 67, 90. Under the agreement Israel has “sole” criminal jurisdiction “over offenses committed in the territory under Palestinian authority by Israelis.” Id. at ¶ 91.

The Chamber in 2021 expressly declined to address the Oslo Accords, which provide that the Palestinian Authority’s jurisdiction only applies to “offenses committed by Palestinians and/or non-Israelis” in Palestine. ICC Palestine Jurisdictional Decision at ¶ 125. The Chamber then concluded that arguments related to the Accords “in the context of the present proceedings are not pertinent to the resolution of the issue under consideration” and may be raised “by interested States based on article 19 of the Statute, rather than in relation to a question of jurisdiction in connection with the initiation of an investigation by the Prosecutor.” Id. at ¶ 129.

Despite declining to address the question of jurisdiction regarding arrest warrants and the Oslo Accords in 2021, in 2024 the Pre-Trial Chamber rejected Israel’s attempt to address those questions–ruling the country did not have standing to file its jurisdictional challenge in the first place and concluding that Israel’s acceptance of jurisdiction under Article 12(3) was not required, “as the Court can exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine.” See Situation in the State of Palestine, ICC-01/18, Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute, ¶ 13 (Nov. 21, 2024). Israel is appealing this decision to the ICC’s five-member Appeals Chamber, asking the Appeals Chamber to remand the matter back to the Pre-Trial Chamber to consider Israel’s jurisdictional arguments on the merits.

Does the ICC Have to Recognize Head of State Immunity Under Customary International Law?

Notwithstanding Israel’s jurisdictional appeal before the Appeals Chamber, the 124 State Parties to the Rome Statute will have to decide to what extent they will comply with the arrest warrant issued against the Israeli officials. This will require consideration of issues related to head of state immunity.

The Court most recently confronted this issue in 2024, when Russian President Vladimir Putin, currently the subject of an ICC arrest warrant, traveled to Mongolia, which is a state party to the Statute. In proceedings in the Pre-Trial Chamber following Mongolia’s failure to arrest Putin, Mongolia asserted that under customary international law, Putin is entitled to head-of-state official immunity. Situation in Ukraine, ICC-01/22, Finding under article 87(7) of the Rome Statute of non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of Vladimir Vladimirovich Putin, ¶ 6 (Oct. 24, 2024) (ICC Mongolia Finding). The Pre-Trial Chamber noted, however, that under Article 27 of the Rome Statute, “official capacity as a Head of State or Government . . . shall in no case exempt a person from criminal responsibility under this statute.” Rome Statute, art. 27(1). Moreover, the Court can “exercise its jurisdiction” over such a national leader without regard to “[i]mmunities . . . whether under national or international law.” Rome Statute, art. 27(2). The Pre-Trial Chamber further reasoned that the ICC is tasked “with exercising its jurisdiction on grave crimes of international concern that threaten the peace and security . . . of the international community as a whole.” ICC Mongolia Finding at ¶ 28. With this scope, “such a multilateral obligation cannot be altered or superseded by . . . commitments that may conflict with the Rome Statute’s objectives.” Id. Further, the Chamber maintained, the Court “is not only indisputably international in nature but also inherently independent of State influence.” Id. at ¶ 31. This vertical relationship “supersedes traditional interstate immunity principles.” Id.

Mongolia countered that Article 98 of the Statute provides that the ICC “may not proceed with a request for surrender for assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person . . . of a third state.” Rome Statute, art. 98(1). In the Chamber’s view, Article 27 “represents a primary obligation within the statutory framework,” and plays a “critical role in promoting accountability for serious crime.” Id. at ¶ 34. Therefore, Article 98 “does not and could not undermine the fundamental principles codified in article 27, on which the entire Court’s system stands.” Id. Article 98 is a “purely procedural provision” which “refers only to the acts of government activities which are typically conducted abroad and are protected by the safeguards on diplomatic immunity for certain officials and budlings.” Id. at ¶ 35. Article 98 “does not address the immunity of the Head of State, but that of the State per se,” and applies only to diplomatic missions and documents which belong to a third State, which “may not be seized without the consent of that State.” Id.

State parties to the Rome Statue in Europe have adopted varying stances as to whether they would enforce a warrant. The Dutch Foreign Minister, for example, said the Netherlands would comply as the country “implements the Rome Statute one hundred percent.” See Netanyahu arrest warrant: Where can he still go in Europe? Politico (Nov. 22, 2024). Officials in Austria, Belgium, Ireland, Slovenia, and Spain have also indicated they would arrest Netanyahu. The French Foreign Ministry, on the other hand, issued a statement that “a State cannot be required to act inconsistently with its obligations under international law with respect to the immunities of States not party to the ICC,” and that such immunities apply to Netanyahu. See Statement: French Ministry for Europe and Foreign Affairs (Nov. 27, 2024). Other states, like Germany and Italy, have expressed general support for the ICC but have been noncommittal as to enforcing the specific warrants. Politico (Nov. 22, 2024). As to Israel itself, the country’s legal filings with the ICC have not addressed head-of-state immunity, and the Attorney General’s public statements have focused on arguing for the ICC’s lack of jurisdiction in the first instance. See No “outrageous” decision will stop me, says Netanyahu about ICC arrest warrant, The Jerusalem Post (Nov. 22, 2024).