33 Winter 2025 he issuance of arrest warrants against Prime Minister Netanyahu and former Defense Minister Gallant by an ICC Pre-Trial Chamber on November 21, 2024, represents a new page in a very long legal saga that started sixteen years ago. The length of the proceedings explains part of the difference in narratives concerning the process leading up to the arrest warrants. Pro-Israeli voices tend to maintain that the Court – and especially the Prosecutor – acted too fast after October 7, 2023, whereas pro-Palestinians tend to criticize the Court for moving too slowly since 2009. In my presentation, I will first put the current development in a temporal context. Second, I will deal with the specific sequence of events following the May 20, 2024 public announcement by the Prosecutor of his intention to request arrest warrants for Netanyahu and Gallant, but also for three Palestinian Hamas leaders (Deif, Haniya and Sinwar; eventually, only an arrest warrant for Deif was issued). I will also comment, in this regard, on the legal challenges that are currently in place against the decisions that were issued by the Court on November 21, 2024. Finally, I will offer some observations on the implications of the case going forward for Israel and for the Court itself. Stage One Proceedings in the Israel-Palestine case started in the ICC long before October 7, 2023. Since early 2009, the Palestinians have been trying to seize the Court. Already then, sixteen years ago, the Palestinians were making allegations concerning the way in which the IDF conducted a military operation in Gaza in 2008-2009 (“Operation Cast Lead”), claiming – like today – that during the operation the IDF used excessive force and violated principles of international humanitarian law (IHL). The Palestinians tried to have the ICC investigate these allegations. Still, at the time, the then Prosecutor – Luis Moreno-Ocampo – decided that the Court does not have jurisdiction over the case, given the doubts over the status of Palestine as a state under international law. He noted that Palestine was not recognized, at the time, as a state by the UN (but only as a non-state observer), and that it was not a Member State of the Rome Statute establishing the Court. In other words, since the ICC primarily deals with cases relating to the territory of states or to state nationals, then only if Palestine were deemed by the international community to be a state, could it validly refer cases to the Court without Israel’s consent (or the consent of the Security Council). This decision by Moreno-Ocampo ended the first part of the saga but set the stage for the following phases. Stage Two Shortly after Ocampo’s decision to deny the Palestinian request to investigate alleged crimes committed by Israel, the Palestinians requested the UN General Assembly to recognize their statehood status, and on November 29, 2012 (the anniversary of the date the “Partition Resolution” – UN Resolution 181 – was adopted in 1947), the General Assembly conferred on Palestine, by a large majority, the status of UN “observer state” (Resolution 67/19). Although this did not amount to full membership in the organization (for this, the consent of the Security Council is also needed), the status upgrade did effectively open the door for Palestine to seek membership in a variety of international organizations and international treaties, including the Rome Statute, which it joined in 2015. The Assembly of State Parties accepted Palestine as a Member State with only a handful of Member States – most notably, Canada – expressing reservations about its membership. Shortly before joining the Statute, Palestine authorized the Court to start an investigation into crimes committed in its territory – covering alleged crimes committed during the 2014 Gaza conflict (“Operation Protective Edge”). In 2018, Palestine made a formal referral to the Court in which it invoked its right as a state party to force the Prosecutor to consider opening ICC Arrest Warrants against Israeli Leaders: Remarks Concerning the Legal Process* Yuval Shany * This is an edited version of a presentation at a webinar on “ICC Arrest Warrants against Israeli Leaders – Legal and Practical Implications,” Dec. 3, 2024, sponsored by the IJL and AAJLJ. T
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