43 Winter 2025 Absent jurisdiction based on a valid delegation or UN Security Council referral, no other provision of the Rome Statute confers jurisdiction on the ICC over Israeli nationals. In particular, the Statute cannot be construed to permit jurisdiction over nationals of non-State parties based on the theory of “universal jurisdiction.” Scholars have noted that doing so would disregard the careful balance between State sovereignty and the limitations on the Court’s jurisdiction reflected in Articles 12, 13, 17 and 53 of the Statute.20 Even if the Court Had Jurisdiction, it Should Not Have Issued the Arrest Warrants Article 58(1)(a) of the Rome Statute provides that arrest warrants can only be issued when the Court is satisfied that “there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” [italics added]. The ICC Prosecutor issued a public statement on May 20, 2024, presenting the alleged factual basis for seeking arrest warrants against Netanyahu and Gallant. For example, the Prosecutor asserted, apparently based on United Nations information published in March 2024, that Netanyahu and Gallant have used “Starvation of civilians [in Gaza] as a method of warfare...”21 However, two weeks after the Prosecutor requested the issuance of arrest warrants, the United Nations reversed its conclusion in an updated report acknowledging the widespread availability of food in the Gaza Strip, while continuing to call for close monitoring of the situation.22 Significantly, the Prosecutor failed to bring this new information to the Court’s attention. Nor has the Court considered the impact on the welfare of civilians in Gaza of Hamas’s well-documented actions in stealing food deliveries and killing aid workers.23 The Prosecutor’s other allegations of war crimes and crimes against humanity generally involve unverified claims that Netanyahu and Gallant are deliberately targeting civilians in Gaza. There is no evidence supporting these claims.24 While Israel goes to great lengths to avoid civilian casualties, Hamas deliberately uses civilians as human shields, placing them in harm’s way as the key to its longstanding strategic doctrine. The power of Hamas’s strategy of exploiting Western values by increasing the death toll in Gaza reverberates in the Court’s decision.25 While every loss of innocent life is tragic, the facts do not support the ICC’s conclusion. Armies fighting defensive wars against terrorists in urban environments generally inflict a civilian to militant casualty ratio of 20. Olympia Bekou and Robert Cryer, “The International Criminal Court and Universal Jurisdiction: A Close Encounter?” 56(1) INT'L & COMP. L. Q. 49, 49-68 (2007) (drafters of the Rome Statute carefully balanced the Court’s jurisdiction against State sovereignty, and therefore did not intend to confer universal jurisdiction). 21. Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine (May 20, 2024), available at https:// www.icc-cpi.int/news/statement-icc-prosecutor-karimaa-khan-kc-applications-arrest-warrants-situation-state. Although the prosecutor did not specifically cite the March 2024 United Nations report, it is reasonable to infer he was referring to that report. 22. “Famine Review Committee: Review of the Famine Early Warning Systems Network (FEWS NET) IPCCompatible Analysis for the Northern Governorates of the Gaza Strip,” IPC (June 4, 2024), available at https:// www.ipcinfo.org/fileadmin/user_upload/ipcinfo/docs/ documents/IPC_Famine_Review_Committee_Report_ FEWS_NET_Gaza_4June2024.pdf 23. Ephraim D. Tepler and Itamar Marcus, “Fatah: Hamas kills aid workers and steals food for itself,” PMW (April 21, 2024), available at https://palwatch.org/page/35086 (quoting report from Fatah/PLO-run Awdah TV); see also TOI Staff, “Gaza Aid Truck Stolen by Gunmen and Looted as Convoys Start Crossing from Israel,” TIMES OF ISRAEL (Dec. 17, 2023), available at https://www. timesofisrael.com/gaza-aid-trucks-stolen-by-gunmenand-looted-as-convoys-start-crossing-from-israel/; see also Gianluca Pacchiani, “Video Shows Gunmen Stealing from Aid Trucks Shooting at Gaza Civilians,” TIMES OF ISRAEL (Dec. 5, 2023), available at https://www. timesofisrael.com/liveblog_entry/video-shows-gunmenstealing-from-aid-trucks-shooting-at-gaza-civilians/ 24. Netanyahu addressed these allegations in his July 24, 2024 speech to a joint session of the United States Congress: “The IDF has dropped millions of flyers, sent millions of text messages, made hundreds of thousands of phone calls to get Palestinian civilians out of harm’s way. But at the same time, Hamas does everything in its power to put Palestinian civilians in harm’s way.” See “We’re protecting you: Full text of Netanyahu’s address to Congress,” TIMES OF ISRAEL (July 25, 2024), available at https://www.timesofisrael.com/were-protecting-youfull-text-of-netanyahus-address-to-congress/ 25. See, e.g., “Hamas official says group ‘well aware’ of consequences of attack on Israel, Palestinian liberation comes with ‘sacrifices’,” ARAB NEWS (Oct. 20, 2023), available at https://www.arabnews.com/node/2394966/ middle-east; see also NATO Strategic Communications
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