39 Winter 2025 Introduction On November 21, 2024, Pre-Trial Chamber I of the International Criminal Court (ICC) granted a request by the Court’s prosecutor, Karim Khan, to issue arrest warrants for one Hamas terrorist, Mohammed Deif (who Israel reports has been killed), and two Israeli leaders, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.1 The Pre-Trial Chamber’s decision shattered the Court’s norms and practices. This was the first time in the history of the ICC that arrest warrants were issued for the duly elected and appointed officials of a democratic country. It was the first time the ICC equated such officials with terrorists. This marked the first instance when the ICC issued arrest warrants for the leaders of a country that was the victim of an unprovoked massacre of its citizens and subsequently fought back to defend itself. Importantly, the ICC lacked any factual or legal basis to issue the arrest warrants for Netanyahu and Gallant. By doing so anyway, the Court forever tarnished itself as an enabler of Palestinian lawfare against Israel. II. The ICC Erred in Issuing Arrest Warrants for Netanyahu and Gallant The Pre-Trial Chamber’s decision to issue arrest warrants for Netanyahu and Gallant was deeply flawed for a number of reasons. First, the Court lacked jurisdiction to issue the arrest warrants, because Palestine explicitly waived jurisdiction over Israeli nationals in the Oslo Accords, which were legally binding when signed and remain legally binding today. Thus, Palestine cannot delegate jurisdiction to the Court pursuant to Article 12 of the Rome Statute, nor was there any other basis for the Court’s jurisdiction. Second, even if jurisdiction existed, the Prosecutor’s request for arrest warrants failed to satisfy the requirements of Article 58(1)(a) for “reasonable grounds.” We begin with an analysis of the Oslo Accords. The Oslo Accords The Oslo Accords Were Legally Binding when they Took Effect The Oslo Accords, the result of arms-length, robust negotiations between Israel and the Palestine Liberation Organization (PLO), comprise several landmark documents signed between 1993 and 1995.2 In the first Oslo agreement, the September 13, 1993 Declaration of Principles on Interim Self-Government Arrangements, witnessed by the United States and the Russian Federation, Israel and the PLO solemnly agreed in writing, “to put an end to decades of confrontation and conflict, recognize their mutual legitimate and political rights, and strive to live in peaceful coexistence and mutual dignity and security and achieve a just, lasting and comprehensive peace settlement and historic reconciliation through the agreed political process.”3 The ICC’s Arrest Warrants for Netanyahu and Gallant Steven E. Zipperstein and Sharon Mayer 1 The Court’s decision was filed as a non-public document. The Court announced its decision in a press release the same day. See Press Release, International Criminal Court, “Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant” (Nov. 21, 2024), available at https://www.icc-cpi.int/news/situation-state-palestineicc-pre-trial-chamber-i-rejects-state-israels-challenges 2. Mahmoud Abbas, the current President of the Palestinian Authority, served as the lead negotiator of the Accords from the Palestinian side alongside former PLO Chairman Yassir Arafat. In his memoir of the negotiations, Abbas recounted how the Palestinian delegation gave “attention to every word, sentence and expression. It was even necessary to scrutinize every comma and full stop so that we could eliminate the likelihood of fatal pitfalls occurring in the future.” Mahmoud Abbas, THROUGH SECRET CHANNELS 161-62 (Garnet, 1995). 3. UN Doc. A/48/486 S/26560, Declaration of Principles on Interim Self-Government Arrangements, IsraelPalestine Liberation Organization (Sept. 13, 1993). I.
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