37 Winter 2025 practical division of labor between them, but rather views it as a box that needs to be ticked once by the Prosecutor. Such an interpretation is not compatible, in my view, with the object and purpose of the principle of complementarity under the Rome Statute. Still, this is where we are in the process. The two decisions that were issued by the Pre-Trial Chamber – on jurisdiction and complementarity – have been appealed by Israel to the ICC Appeals Chamber, directly and indirectly – through the Pre-Trial Chamber. The Prosecutor has opposed all of these appeals, and the Court will have to decide on them rather soon. In any event, it is quite clear that the jurisdictional issues are still alive, and will have to be determined sooner or later; moreover, Israel can still claim complementarity if it opens a domestic police investigation or a prosecution driven investigation against Netanyahu and Gallant (arguably, the investigatory standards it would need to meet at this stage are higher than what is expected at the ICC’s Article 18 notification stage). The other two decisions issued by the Court on November 21, 2024, were the arrest warrants against Netanyahu and Gallant, and the arrest warrant issued against Mohammed Deif (both decisions were not published; only their summary was made public). Regarding the Israelis, it is noteworthy that the Court did find reasonable grounds for most of the allegations of war crimes and crimes against humanity found in the Prosecutor’s request for arrest warrants. The central charge made against Netanyahu and Gallant in this regard is starvation of civilians as a method of war. One should note that this is a legally contested accusation, because it only applies in international armed conflicts, and, in order to charge it in trial, the Prosecutor will have to prove that the conflict between Israel and Hamas in Gaza is an international armed conflict (akin to an inter-state conflict or a conflict occurring on the territory of a foreign state), and not a non-international armed conflict (akin to internal conflict or a conflict involving a non-state armed group as one of the parties). There is a longstanding division of views between experts on how to classify the conflict in Gaza. Yet, the Prosecution and Pre-Trial Chamber have adopted the least convenient legal framing for Israel: When Israelis commit crimes against Palestinians, it is the more demanding laws of international armed conflict that provide the list of crimes, but when Hamas militants commit crimes against Israelis, it is the more modest list of crimes committed during non-international armed conflicts that applies. This is a somewhat odd legal construction, and one would expect to see significant litigation around this specific issue in the future. Regarding the allegations of crimes against humanity with which Netanyahu and Gallant were preliminarily charged, the distinction between international and noninternational armed conflicts is largely irrelevant. In the request for arrest warrants, the Prosecution alleged their involvement in widespread or systematic attacks on civilians resulting in murder, cruel treatment and other inhumane acts. Interestingly, the Court rejected the Prosecutor’s most serious allegation, the crime against humanity of extermination. This may be significant, as this is the allegation that most resembles the charge of genocide that South Africa has made before the International Court of Justice (note that the Prosecutor did not make any genocide charges so far, with respect to the war in Gaza). The Court held that, at least at this point in time, the Prosecution did not submit enough information to substantiate the charge, which implicates mass killings. This outcome may have to do with the difficulty of showing, at present, that large numbers of civilians in Gaza died as a result of malnutrition or dehydration due to Israel’s alleged restrictions on humanitarian aid. With regard to Deif, the charges in the arrest warrant involve crimes against humanity and war crimes. They focus both on the massacres committed on October 7, and also the mistreatment of the Israeli hostages by their Hamas captors. Deif is most likely no longer alive (Israel has claimed that he was killed in an aerial attack), and some observers regard the Court’s decision to continue with the proceedings as somewhat of a public relations stunt designed to show the Court is balanced and is prosecuting both Israeli and Palestinian suspects. Implications Where does all this leave us? For Israel, the arrest warrants are a very serious development, however one spins it. The fact that we have a serving Prime Minister and a former Minister of Defense charged with war crimes and crimes against humanity in relation to an alleged policy of deliberate starvation – an aspect of the conflict in relation to which Israel has already been severely criticized by some of its best allies, is a very severe reputational blow for the country. There have obviously been many problems and difficulties in this policy area throughout the war, but now it has been branded by the Court as a possible criminal project. This is bound to increase Israel’s international isolation, and may also make it more difficult, in practical terms, for Israel to
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