36 No. 73 JUSTICE in 2021, and that at the time, the Court took the view that the matter should be resolved only if arrest warrants are issued. In late June 2024, the Court allowed the UK to make legal representations on the issue. Furthermore, it also indicated that it would be willing to review other requests for legal intervention by interested individuals, states, and organizations (without clearly limiting the scope of issues that would be raised in these additional requests for amicus brief). Indeed, more than 70 additional amicus briefs were requested, and most of them were allowed and submitted to the Court (the UK itself eventually refrained from making a submission on the matter). This additional process of argumentation effectively put the proceedings on hold for several months until the Court issued arrest warrants on November 21, 2024. During that time, pro-Palestinian groups and commentators criticized the Court for abdicating its responsibility to deal quickly with the Prosecutor’s request, and they accused it of purposefully dragging its feet. Observers of the Court assumed that the Court was taking its time to deliberate, among other things, on the complex question of jurisdiction which had been left hanging by the 2021 decision and which was raised again by many of the amicus briefs and, in September 2024, by Israel itself, who took the exceptional step of filing a brief with the Court and raising directly its jurisdictional objections. Israel reiterated in its legal challenge its traditional opposition to the idea that Palestine is a state under international law and/or that, in the bilateral relations between Israel and Palestine, the latter should be considered a state. Israel also rejected the view that the Court has jurisdiction over Gallant and Netanyahu, citing the impact of the Oslo Accords on the Court’s jurisdiction. In a separate brief submitted to the Court in September 2024, Israel also raised the issue of complementarity and made the following argument: The notification about the opening of investigation that Bensouda issued to Israel in 2021 covered the events that were investigated then (settlements in the West Bank and attacks in and around Gaza in 2014 – “Operation Protective Edge” – and the fence demonstrations in 2018). This notification could not be deemed to cover events that transpired two years later, and which most certainly could not have been investigated by Israel in 2021. Since Prosecutor Khan changed the focus of the older investigation to the current war in Gaza, which has very different features and involves different actors (e.g., Gallant, the Minister of Defense was not in office before 2022, as was the case with much of the IDF leadership) and implicating different alleged crimes (e.g., starvation), he was obliged to send Israel a new notification. By refusing to give notification and to allocate a one-month period during which Israel could claimed that it is investigating itself the events reviewed by the ICC Prosecutor, according to Article 18 of the ICC Statute, Israel maintained that its right to complementarity was rendered illusory. In other words, Israel claimed that the Prosecutor failed to notify it of his decision to open a new criminal investigation or to reorient the direction of the existing one, and that the Court could not proceed with the case before this deficiency was remedied. The Pre-Trial Chamber rejected both Israeli challenges in the two rulings that it issued on November 21, 2024. The Chamber completely ignored in its ruling the massive number of amicus briefs submitted to it with relation to the impact of the Oslo Accords on the Court’s jurisdiction. In the first ruling, the Court held that Israel does not have legal standing to contest the Court’s jurisdiction, relying in the ruling on a highly technical argument that Article 19(2)(c) of the ICC Statute, which allows challenges by states whose consent for jurisdiction is required, is not the proper vehicle for Israel to raise its concerns (since allegedly, once Palestine consented to the Court, Israel’s consent was no longer required). I think the Court was wrong in its reading of the Statute on this, but what is more disturbing is that the Court did not positively assert that it has jurisdiction over the case, as it was required to do under Article 19(1) of the Statute. Instead, it noted that Israel could raise its jurisdictional objections at a later stage of the process. So, on a narrow procedural basis, and in a very short decision, the Court rejected the jurisdictional challenge relating to the impact of the Oslo Accords, without dealing with the substance of the concerns that have been raised by a multiplicity of stakeholders for years now about the Court's power to adjudicate cases involving Israeli nationals. The Court’s second ruling, on the question of Article 18 – that addressed the complementarity notification issue – rejected Israel’s interpretation of the article. In its brief decision, the Court held that the conflict in relation to which the notification was issued in 2021 is the same conflict in Gaza between Israel and Hamas in relation to which the arrest warrants were requested in 2024. Hence, the Prosecutor can rely on the earlier notification that his predecessor issued in 2021. I believe that this is a highly formalistic decision, which does not look at complementarity as a dynamic framework of cooperation between the Court and domestic legal systems, inviting
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