Facts about Palestine's accession to ICC and the arrest warrants

I am writing today’s article to introduce the reader to the details of Palestine’s journey to join the International Criminal Court, leading up to the arrest warrants. Today’s article documents and explains the diplomatic efforts and legal steps that Palestine took to reach this historic moment. I will put the steps in their time frame so that the reader can understand the challenges and patience required for the diplomatic work that we are reaping the fruits of today.

* 1998 Adoption of the Rome Statute: The Rome Statute was signed, regulating the work of the International Criminal Court, and aims to hold individuals accountable for crimes of genocide, war crimes, and crimes against humanity.

* 2002 Establishment of the International Criminal Court: The court was officially established and began its work to hold accountable individuals accused of committing the major crimes covered by the statute.

* 2011 Palestine's status at the UN is upgraded: Palestine began efforts to upgrade its status at the UN as a first step towards joining the ICC. The PLO requested that its status at the UN be upgraded from "observer entity" to "non-member observer state."

This was part of a diplomatic strategy aimed at strengthening its international standing, allowing it to accede to international treaties and agreements, including the Rome Statute of the International Criminal Court. This was the cornerstone of a long and arduous legal diplomatic process. Unfortunately, the PLO failed to obtain the votes required in the Security Council to raise the status of a full member state, so it turned to the General Assembly under the item of Uniting for Peace.

* 2012 Palestine was granted non-member observer state status at the United Nations: This General Assembly resolution allowed Palestine to join several international conventions and treaties, including the possibility of joining the International Criminal Court. 138 voted in favor and Palestine was granted non-member observer state status at the United Nations through General Assembly resolution 67/19.

* June 2014 - The Government of the State of Palestine, by a declaration made pursuant to Article 12(3) of the Rome Statute, accepted the jurisdiction of the International Criminal Court, effective 13 June 2014.

* January 2015, Submission of the Application to Join the Rome Statute: Palestine submitted its official application to join the International Criminal Court. The PLO, led by Dr. Saeb Erekat, formed the Supreme National Committee to follow up on the file of international courts, and confirmed its commitment to the Rome Statute. On January 1, 2015, the PLO officially submitted the accession documents.

* April 1, 2015 Palestine officially joined the court: The Rome Statute entered into force for the State of Palestine, and Palestine became an official member of the court. This day was considered a historic milestone in the Palestinian struggle to achieve justice. The Palestinians then submitted a request to the Office of the Prosecutor of the International Criminal Court to investigate violations of the Rome Statute in the Palestinian territories occupied by Israel in 1967 regarding war crimes and crimes against humanity, most notably the prisoners and settlement files. The High Committee was working to intensify referrals and follow-up, which angered Israel and America.

* 2019-2020 Request to confirm the Court’s jurisdiction: After receiving objections from several countries, including the United States and Israel, Prosecutor Fatou Bensouda asked the Pre-Trial Chamber for its opinion on the Court’s jurisdiction over the Palestinian territories after Israel questioned this jurisdiction.

* February 5, 2021 Confirmation of the Court’s Jurisdiction: The International Criminal Court issued a decision confirming its jurisdiction over the Palestinian territories occupied in 1967, including the West Bank, East Jerusalem and the Gaza Strip.

* October 2023 Palestinian diplomacy and the multilateral sector activated the international legal file to try to stop the ceasefire in Gaza.

* 17 November 2023 Referrals were submitted by the Republic of South Africa, the Republic of Bangladesh, the Plurinational State of Bolivia, the Union of the Comoros, and the Republic of Djibouti regarding the crime of genocide in Gaza.

* January 18, 2024 Additional referrals made by the Republic of Chile and the United Mexican States.

* May 2024 - Prosecutor’s announcement on arrest warrants: Karim Khan, the Court’s prosecutor, announced his intention to issue arrest warrants against political and military figures from Israel and the Gaza Strip, including Benjamin Netanyahu, Yoav Galant, Ismail Haniyeh, Yahya Sinwar and Mohammed Deif.

* On 26 September 2024, Israel challenged the jurisdiction of the Court over the situation in the State of Palestine in general, and specifically in relation to Israeli nationals, on the basis of Article 19(2) of the Statute. In its second request, Israel requested the Chamber to order the Prosecution to submit a new notification to its authorities regarding the commencement of an investigation pursuant to Article 18(1) of the Statute. Israel also requested the Chamber to stay any proceedings before the Court relating to the situation, including the consideration of the applications for arrest warrants against Benjamin Netanyahu and Yoav Galant, submitted by the Prosecution on 20 May 2024.

* November 21, 2024 - Arrest warrants issued: The International Criminal Court issued arrest warrants for Benjamin Netanyahu and Yoav Galant, six months after Karim Khan's announcement.

In parallel with the arrest warrants, 2024 November - The Court issued two decisions dismissing the challenges brought by Israel under Articles 18 and 19 of the Rome Statute, confirming the validity of the Court’s decisions. With regard to the first challenge, the Chamber noted that Israel’s acceptance of the Court’s jurisdiction was not required, as the Court could exercise its jurisdiction based on the territorial jurisdiction of the State of Palestine, as determined by Pre-Trial Chamber I in its previous configuration.

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) before an arrest warrant is issued. Israel’s challenge is therefore premature.

However, this decision does not affect any potential future challenges to the jurisdiction and/or admissibility of any particular case. The Chamber also rejected Israel’s request under Article 18(1) of the Statute. It explained that the Prosecution notified Israel of the commencement of the investigation in 2021. At that time, and despite a request for clarification from the Prosecution, Israel chose not to pursue any request to postpone the investigation. The Chamber also considered that the parameters of the investigation into the situation remained the same and that there was therefore no need for a new notification to the State of Israel. Accordingly, the judges concluded that there was no reason to discontinue the consideration of the requests for the issuance of arrest warrants issued against Benjamin Netanyahu and Yoav Galant, for crimes against humanity and war crimes committed at least between 8 October 2023 and 20 May 2024, the day on which the Prosecution submitted the requests for the issuance of arrest warrants.

The arrest warrants were classified as “secret” to protect witnesses and ensure the proper conduct of investigations. However, the Department has decided to release the information related to them, as it appears that conduct similar to that described in the arrest warrant is still ongoing. In addition, the Department considers that it is in the best interests of the victims and their families to be aware of the existence of these warrants.

So now, there are 124 member states of the Rome Statute that are obligated to implement the court’s decisions, while 7 countries, including South Africa, Bolivia, Djibouti, Bangladesh, Comoros, Chile and Mexico, have returned their referrals regarding the crime of genocide, which is a historic achievement for humanity and international justice. These developments represent an important turning point in international law and the fact that Israel has repeatedly escaped punishment under the cover of international legitimacy. The arrest warrants have strengthened the court’s role in restoring confidence in the international system and law to hold war criminals accountable, despite attempts by Israel and the United States to obstruct the court’s work. Member states that have declared their defiance of the arrest warrants will be held accountable, and it is not unlikely that human rights organizations and individuals will file lawsuits against them and find their persons under indictment in their local courts and the International Criminal Court, as international law is superior to local law and the signatory states to the Statute are obligated to implement and harmonize domestic laws.

The International Criminal Court was established in 2002 with the aim of holding individuals accountable for committing crimes against humanity and war crimes, including genocide. The Statute of the International Criminal Court was adopted in Rome in 1998. Palestine’s accession to the court was not a simple matter; it was a diplomatic process that required a lot of patience, deliberation, teamwork, and strategic leadership. It was not an automatic accession, but rather began with a request to the United Nations to raise Palestine’s status in 2012 to a non-member state, which allowed it to join a group of international agreements and conventions. Here, the Palestinian application to join the Rome Statute of the court was submitted in 2014-2015.

Prosecutor Fatou Bensouda accepted the mandate and intended to open an investigation into the referral of Israeli criminals under the war crimes clause, but Israel quickly objected on the grounds that Palestine is not a sovereign state, i.e. it questioned the territorial jurisdiction of the court. Therefore, the Prosecutor asked the Pre-Trial Chamber for its opinion on territorial jurisdiction to confirm Bensouda’s position that the court’s position on having legal jurisdiction over the West Bank, East Jerusalem and the Gaza Strip would enable her to open the investigation. The response was expected to come within a period not exceeding 120 days since the end of 2019, and we were hoping that the court would begin investigating the files of Israeli criminals in early 2020, but we witnessed successive extensions by the court, which is further evidence that the process is complex and requires a lot of patience, diligence and work. The Pre-Trial Chamber invited Israel to submit observations on January 28, 2020, but the latter chose not to respond directly legally, but rather continued to question and direct political accusations at the court and the Prosecutor. On 2/5/2021, the Pre-Trial Chamber of the International Criminal Court issued a decision regarding the court’s jurisdiction to consider war crimes committed, confirming its jurisdiction over the Palestinian territories occupied in 1967, including the West Bank, East Jerusalem, and the Gaza Strip. This decision means that the subject of the court’s territorial jurisdiction over Palestine is beyond doubt, and it has become an official and legal headquarters.

The court was expected to practically begin accelerating its judicial procedures to investigate the files brought before it, including the crimes committed by Israel during the occupation’s three-time aggression on the Gaza Strip, and the files of prisoners and settlements since 2014, i.e. since Palestine joined the Charter, and not retroactively according to the law. Under the Rome Statute, the International Criminal Court only prosecutes cases in which national authorities clearly fail to ensure accountability. In this context, any examination of the Israeli judicial system regarding violations of Palestinian rights falls under the jurisdiction of the International Criminal Court. In 2015, the Palestinians submitted a request to the Office of the Prosecutor of the International Criminal Court to investigate violations of the Rome Statute in the Palestinian territories occupied by Israel in 1967, beginning in 2014. The court wasted years adjudicating jurisdictional issues before finally confirming, in 2021, that it had the mandate to conduct legal investigations in the occupied territories. When Israel failed to prevent the Palestinians’ accession, it began to practice coercive “diplomacy” through economic sanctions and withholding Palestinian tax revenues that it was legally required to transfer to the Palestinian Authority, and imposed a variety of restrictions on Palestinian officials, and threatened to punish the Palestinian Authority in additional ways, while the United States made its displeasure clear, and directed its retaliatory measures directly at the International Criminal Court, and Washington imposed sanctions on Fatou Bensouda, Karim Khan’s predecessor.

This is how Washington has informed the ICC that it has no right to investigate Israel’s crimes against the Palestinians or the US’s conduct in Afghanistan. Now, smear campaigns and sexual suspicions against Karim Khan are being launched, all in an attempt to pressure and intimidate the court. In 2002, the US adopted legislation known as the Hague Invasion Act, which allows the US military to invade the Netherlands, a NATO member, and release any US citizen held by the ICC. Meanwhile, the Europeans, who are members of the Rome Statute, have continued to affirm their support for the ICC while presenting the court with false legal arguments insisting that it has no jurisdiction over Palestine.

It is necessary to reactivate the Supreme National Committee for the Follow-up of the International Courts File, which includes representatives of all factions, including Hamas, and representatives of Palestinian human rights and official institutions. The objectives of the National Committee were to follow up on the necessary preparations for submitting files related to Israeli war crimes, especially the settlement and Gaza files, and to work on formulating the legal evidence and documents required to submit them to the International Criminal Court, in addition to coordinating with Palestinian and international bodies to collect documents proving Israeli violations and ensuring Palestine’s compliance with the requirements of the Rome Statute. This comprehensive national committee was part of the Palestinian national strategy to promote recourse to international law as a means of achieving justice and holding the occupation accountable for crimes committed in the Palestinian territories on the basis of national unity.

Israel is currently committing a brutal genocide in the Gaza Strip, prompting many jurists to file cases against Israel before the International Criminal Court and the International Court of Justice. These cases, particularly the South Africa v. Israel case, where Germany filed a request for intervention and South Africa subsequently accused the United States and the United Kingdom of complicity in the crime of genocide, constitute a pivotal stage of the point of no return in international law. The charges and referrals regarding the crime of genocide are important, but it is necessary to reactivate and intensify referrals for all crimes against humanity, including the files of settlements, prisoners and the repeated aggression on Gaza.

The arrest warrants reaffirm the importance of diplomatic and legal tools and the need to build on them and invest in them. Diplomacy is a long journey that requires effort, time and money, but this path has branded Israel with a new brand that is an organized terrorist state and has proven the criminality of its leadership as a historical precedent.