35 Winter 2025 over them. According to Judge Kovacs, the Palestinians cannot confer on the Court more power than they themselves had. The two other judges did not rule differently on the merits of this challenge. They simply held that this is a premature question, which the Court did not need to decide upon when there were no specific requests for arrest warrants against any Israeli national. If and when arrest warrants would be requested at a later point in time, it would then be necessary for the Court to decide the issue. What the Court effectively did in 2021 was to reject the objection to jurisdiction that emanated from the dubious status of Palestine under international law, but to defer the decision on the Oslo Accords objection to the future. Following the 2021 decision, the Prosecutor officially announced the opening of a criminal investigation and provided relevant states, including Israel, with a formal notification of the commencement of investigation. Such a notification is designed to allow such states to claim that they are investigating or prosecuting the same events – that is, invoking the principle of complementarity, which serves as a foundational and central principle in the legal system created by the Rome Statute. There is some lack of clarity about what Israel did in response to the notification. It is quite obvious that it did not invoke complementarity in a formal sense, although it did ask for more information about the Prosecutor’s investigation, which apparently was never given. Stage Four In 2021, an investigation into the Palestine situation was formally opened, but the investigation remained somewhat on the back burner. In fact, Karim Khan, who replaced Fatou Bensouda as the ICC Prosecutor in June 2021 – shortly after the investigation was opened – was criticized by civil society groups for not regarding the Palestine situation as a sufficiently high priority issue (focusing instead on Ukraine and other situations). This relative deprioritization may have had something to do with the perception that Israel has a functioning legal system capable of addressing many of the issues also investigated by the Prosecutor. Indeed, Israel was looking into many of the specific allegations included in the formal investigation notification – especially those related to events in and around Gaza in 2014 and 2018. What Israel was not looking at, however, were issues relating to settlement activity in the West Bank which were also part of the Prosecutor’s notice of investigation. Such activity is, generally, not criminalized under Israeli law (with a few specific exceptions relating to certain illegal land grabs). After fourteen years of ICC review of events in the Israel/Palestine context, the dramatic attacks by Hamas on October 7 and Israel’s subsequent military reaction, led to a new level of involvement of the ICC in the conflict. Shortly after the war in Gaza started in 2023, Karim Khan received a number of new referrals by Member States, inviting him to look at alleged violations of international law committed by Israel in its military operations in Gaza. At the same time, Israeli victim associations and other international lawyers directed his and his office’s attention to the atrocities committed by Hamas on October 7. Khan visited the region twice in late 2023. He visited the Rafah crossing and held a press conference in Cairo, and he later on visited some of the kibbutzim in Israel that were attacked on October 7. He also held meetings in Ramallah. Around the time of those referrals and visits, the Prosecutor issued several statements. We have reason to believe that he and his office were in ongoing contacts with Israeli officials, with a view to receiving information about any conduct of investigations in Israel. (During the war, Israel opened a number of investigations of the atrocities committed by Hamas and Hamas supporters on October 7, but also examined certain acts undertaken by IDF soldiers. Still, to date, no commission of inquiry has been established by Israel to review the events leading up to October 7 and the Israeli response to the attack.) There were even reports of a planned visit by the Prosecutor to Israel, scheduled for late May 2024, to discuss the parallel investigations. Still, on May 20, 2024, the Prosecutor announced on CNN that he would be requesting arrest warrants against Netanyahu and Gallant (as well as against three Hamas leaders). This development caught the Israeli officials who had been in communication with the Office of the Prosecutor completely by surprise; apparently, they had expected to rely, in due course, on the principle of complementarity in relation to the Court. Developments Post-May 20, 2024 Following the dramatic announcement of the request for arrest warrants on May 20, 2024, on June 10 the UK requested permission by the Court to submit an amicus brief – a legal brief presented pursuant to Rule 103 of the Court’s Rules – which would invite the Court to review the legal question that the 2021 Pre-Trial Chamber decision had deferred to the future, relating to the impact of the Oslo Accords on the Court’s jurisdiction. It should be recalled that the matter was deliberately left unresolved
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