College of Law

Legal Article by Assistant Professor
Dr. Fathi Muhammad Fathi Al-Hayani
Comment on the decision of the International Criminal Court to issue arrest warrants against Netanyahu and Galant,,,
Justice may be postponed but fruitful,,,
In order to clarify everything related to these orders and open the door to discussion and research, I will suffice in this post with citing the circumstances that accompanied and preceded the issuance of the arrest warrants as explained by the court, and I will have a detailed pause with the content of these orders as they included important legal issues, whether related to the adaptation of the existing conflict and the legal adaptation of its parties or related to the charges attributed and their legal bases, in addition to the legal and realistic effects that result from all of that.
On 1 January 2015, the Government of the State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court with respect to alleged crimes committed in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014. On 2 January 2015, the State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the Secretary-General of the United Nations. The Rome Statute entered into force for the State of Palestine on 1 April 2015. On 16 January 2015, the Prosecutor announced the opening of a preliminary examination into the situation in the State of Palestine in order to determine whether the Rome Statute criteria for opening an investigation have been met. Specifically, under article 53(1) of the Rome Statute, the Prosecutor must consider issues of jurisdiction, admissibility and the interests of justice in making this decision. On 22 May 2018, under articles 13(a) and 14 of the Rome Statute, the State of Palestine referred to the Prosecutor the situation since 13 June 2014 without specifying a deadline. This referral did not automatically lead to the opening of an investigation, as the Prosecutor had to determine whether the legal criteria for opening an investigation had been met. On 20 December 2019, the Prosecutor announced that, following a comprehensive, independent and objective assessment of the reliable information available to her Office, the preliminary examination of the situation had concluded that all the legal criteria under the Rome Statute for opening an investigation had been met. However, given the complex legal and factual issues involved, she announced that she would submit a request to Pre-Trial Chamber I for a ruling to clarify the territorial scope of the Court’s jurisdiction in this situation. In the Prosecutor’s Request of 22 January 2020, the Office set out its legal position and encouraged the Chamber to hear the views and arguments of all stakeholders before making a decision on the specific jurisdictional issue before it. Pre-Trial Chamber I did so, and on 28 January 2020, it issued an Order setting out the procedure and timetable for submission of observations on the Prosecutor’s Request. On 3 March 2021, the Prosecutor announced the opening of an investigation into the situation in the State of Palestine. This followed Pre-Trial Chamber I’s decision on 5 February 2021 that the Court could exercise its criminal jurisdiction in the situation and by a majority vote that the territorial scope of this jurisdiction extended to Gaza and the West Bank, including East Jerusalem. On 17 November 2023, the Office received a further referral regarding the situation in the State of Palestine from South Africa, Bangladesh, Bolivia, Comoros and Djibouti. Upon receipt of the referral, the Prosecutor confirmed that he was currently investigating the situation in the State of Palestine, which remains ongoing and extends to the escalation of hostilities and violence since the attacks of 7 October 2023. On 18 January 2024, the Republic of Chile and the United States of Mexico submitted a further referral to the Prosecutor regarding the situation in the State of Palestine currently under investigation and confirmed their commitment to cooperate with the Court. On 20 May 2024, the Prosecutor of the International Criminal Court submitted requests for arrest warrants before Pre-Trial Chamber I. On 21 November 2024, Pre-Trial Chamber I of the International Criminal Court issued a warrant of arrest against Mr. Mohamed Diab Ibrahim al-Masri, known as “al-Deif”, the senior commander of the military wing of Hamas (known as the al-Qassam Brigades), for crimes The crimes against humanity of murder, extermination, torture, rape and other forms of sexual violence, as well as the war crimes of murder, cruel treatment, torture, hostage-taking, outrages upon personal dignity, rape and other forms of sexual violence committed in the territory of Israel and the State of Palestine from at least 7 October 2023 On 21 November 2024, Pre-Trial Chamber I of the International Criminal Court also issued two decisions dismissing appeals filed by Israel under articles 18 and 19 of the Rome Statute and issued arrest warrants for Benjamin Netanyahu and Yoav Galant for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024. Benjamin Netanyahu, the Prime Minister of Israel at the time of the conduct in question, and Yoav Galant, the Minister of Defence of Israel at the time of the alleged conduct, are suspected of the war crimes of starvation as a method of warfare and intentionally directing an attack against a civilian population, and the crimes against humanity of murder, persecution and other inhumane acts.