When the Rome Statute of the International Criminal Court of 1998 was adopted (although it did not come into effect until 1 July 2002), very few expected that a time would come when this statute would be applied to Israeli officials, holding them accountable for crimes committed against Palestinians in the
Palestinian territories occupied since 1967, that is, the Gaza Strip and the West Bank, including East Jerusalem, especially given the fact that Israel is not a State Party to the Rome Statute. Nevertheless, human rights defenders went to work, focusing their efforts on using the principle of universal jurisdiction to persuade states to hold accountable Israeli leaders suspected of committing war crimes and crimes against humanity in the occupied Palestinian territories.
When Palestinian and international human rights organizations began investigating ways in which the Court could prosecute Israeli politicians and military personnel for suspected involvement in the commission of war crimes and crimes against humanity against Palestinians, it became apparent that Palestine would need to join the Rome Statute, particularly given the fact the United States would use its veto power to sabotage any attempt by the UN Security Council to use its powers under Article 13 (b) of the Rome Statute to refer the Palestine file to the Court so that it could exercise its jurisdiction over the occupied Palestinian territories.
With Palestine’s accession to the Rome Statute on 2 January 2015, the foundations were laid for the Court’s jurisdiction to consider war crimes and crimes against humanity, including the crime of genocide, committed in the occupied Palestinian territories. On 3 March 2021, then-Prosecutor of the ICC, Fatou Bensouda, announced the opening of an investigation into the situation in Palestine. In response, Yossi Cohen, head of Israel’s foreign intelligence agency, Mossad, issued a direct threat against Bensouda to dissuade her from pursuing the investigation.
On 21 November 2024, more than 410 days after the launch of Israel’s war of revenge against the Gaza Strip, the ICC Pre-Trial Chamber I issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. By this time, six months had passed since the announcement by the ICC Prosecutor Karim Khan on 20 May 2024 that requests had been submitted to the Pre-Trial Chamber for arrest warrants against the two men for war crimes and crimes against humanity against Palestinians, particularly in the Gaza Strip. The Pre-Trial Chamber also issued an arrest warrant for Muhammad Diab Ibrahim al-Masri (aka “Muhammad Deif”), Commander-in-Chief of the Qassam Brigades (Hamas’s military wing), while agreeing to drop the arrest warrants for Yahya Sinwar, head of Hamas in Gaza, and Ismail Haniyeh, head of Hamas’s political bureau, after their deaths were confirmed.
The majority of the 124 States Parties to the Rome Statute voiced their commitment to implement the decision in a manner consistent with their obligations under the Statute. The leaders of some States even announced that Netanyahu and Gallant would be arrested if they set foot in their territories. Meanwhile, Israeli officials launched a shrill attack on the decision and the Court, as did most US officials, threatening to impose severe sanctions on the justices of the Court, as well as on countries that cooperated with it.
This paper presents an overview of human rights defenders’ struggle for more than two decades to prosecute perpetrators of war crimes and crimes against humanity in the occupied Palestinian territories before the International Criminal Court (ICC) in order to prevent impunity and to achieve justice for the victims. The paper discusses the potential consequences of the ICC arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, including the prospects for holding them accountable for their involvement in war crimes and crimes against humanity against Palestinians, particularly in the Gaza Strip, where the Palestinian population has been subjected to an ongoing retaliatory war since 8 October 2023.