How the ICC case against Israeli leaders was made possible

The request for international arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and war minister Yoav Gallant, alongside three Hamas leaders, came as a surprise to many, not least of which Israel. For what was likely a first, its top leaders were being confronted judicially for their violations of international law. Although Israel had been spying on the International Criminal Court (ICC) for years, as revealed in a recent exposé by The Guardian, the outrage Netanyahu displayed betrayed indignation at the fact that the wall of impunity for Israeli leaders was showing signs of cracking.

For Palestinians, the news was long-awaited. Palestinian human rights groups have been tirelessly campaigning for such a move for years.

The door was opened for an investigation to take place of Israeli crimes when Palestine first signed on to the Rome Statute in 2014, which is constituent of the ICC. Israel refrained from signing that same Statute in 2002 due to fears of being the subject of prosecutions over the illegal status of its settlements in Palestinian territories. But when Palestine joined, Israeli violations of international law could be prosecuted because they took place on internationally recognized Palestinian land.

Palestinian and international jurists have been building the case for Israeli crimes that have been committed after 2014, since the court only investigates crimes committed during the time of a country’s membership.

“We have been submitting documentation of Israeli crimes during major events that extend beyond the current genocide,” Tahseen Alian, senior researcher at the Palestinian human rights group Al-Haq, told Mondoweiss. “We’ve made this case at the ICC over crimes Israel committed in military assaults on Gaza in 2014 and 2021, in the killing and maiming of peaceful protesters during the Great March of Return in 2019 and 2020, and in the ongoing settlement building, confiscation of land, and population transfer — both the forcible transfer of Palestinians out of their lands and the transfer of Israelis into settlements in the West Bank.”

Article 49 of the Fourth Geneva Convention states that it’s illegal for an occupying power to transfer its own civilians to live in occupied territory, making all Israeli settlements in the West Bank and East Jerusalem illegal and amounting to a war crime, which has been ongoing since 1967.

“The fact that the ICC focused only on the current period might seem disappointing to some, but it’s very difficult to see a prosecution of every Israeli crime and every Israeli official implicated at once,” Alian said. “But this is a start. It is the beginning of accountability for the occupation in an unprecedented way.”

The request for the arrest warrants is particularly significant given the long and difficult process of Palestinian advocacy at the ICC. For five years after joining the Rome Statute, Palestinians demanded the ICC to open an investigation into Israeli crimes. Alian points out that in private meetings, representatives of the ICC told Palestinian jurists that they would need to wait many years before the court decided to investigate Palestine’s case.

A legal field riddled with political landmines

The fact that this ICC case has even been able to get off the ground is due to a confluence of factors that have not existed since 2014.

“These legal procedures are intertwined with politics,” Alian explains. “And the entire international legal system is politicized, so the political moment is important for any legal move.”

Changes in the political context, therefore, are what allowed for the ICC case to move forward.

“A political moment was created in which the ICC could act,” Alian says. “This includes the fact that, at this moment, there is a disagreement between Israel and the U.S. on the way the war is being conducted, and there is intense pressure from within Israeli society and the Israeli political class on Netanyahu.”

Alian adds that the fact that the October 7 attacks caused so many Israeli casualties enabled the ICC to also prosecute Hamas leaders, which made it easier for it to claim to be “fair” when it chose to prosecute Israeli leaders. This, in addition to U.S.-Israeli and intra-Israeli conflict, is what made Karim Khan’s announcement last week possible. But had the groundwork for it not been laid in previous years, it might not have materialized.

Even though that groundwork started after Palestine joined the Rome Statute, the first breakthrough for Palestine at the ICC began to appear four years ago in December 2019. Then-ICC Chief Prosecutor Fatou Bensouda announced the opening of a formal investigation into potential war crimes in Palestine. Bensouda’s successor and current chief prosecutor, Karim Khan, delayed the investigation on Palestine’s file, moving it down the priority list ever since he took office in 2021.

“Karim Khan gave the impression that he was uninterested in the Palestine file, but we know that the ICC came under huge pressure from several countries to avoid investigating Palestine,” Alian indicates. “This pressure has always been there, and was faced by the Palestinian Authority, too, since 2009, when Palestine first requested to join the Rome Statute and faced pressure from European countries to stand down.” 

“Palestine did not stand down,” Alian adds. “But the ICC refused its petition to join on the grounds that Palestine wasn’t recognized as a state.”

That same pressure continues and may, in fact, increase in the coming months. In the days before the ICC prosecutor’s announcement, and as Israel braced for the move, Israel told U.S. officials that if arrest warrants were issued against its leaders, Israel would consider the Palestinian Authority responsible and take retaliatory measures against it. These measures would include the complete freezing of customs money belonging to the PA (on whose behalf Israel collects as part of the Oslo Accords, representing at least 61% of the PA’s budget).

“This has always been a tool of political pressure in the hands of the occupation,” Alian points out, explaining that in previous occasions, Israel would choke the PA financially, and then European countries and the U.S. would offer the PA to reanimate negotiations and increase aid in exchange for dropping a legal case. “So far, the PA’s diplomatic officials and legal experts have all affirmed that they are insisting on going all the way at ICC.”

Since the PA is the signatory to the Rome Statute, it is Palestine’s legal representative before member states of the ICC. But behind the scenes, Palestinian human rights organizations have been a central part of the legal work to achieve accountability for the violation of Palestinians’ human rights, according to Alian.

“Since 2009, Palestinian human rights groups began encouraging the PA to join the Rome Statute, and we have been documenting violations and preparing the case for the ICC for years before that,” he says. “We constantly sent notifications and reports to the ICC after Palestine joined, and we engaged with the ICC directly, especially at the conferences of member countries.”

Israel has already put the human rights groups involved in advocacy for moving forward Palestine’s case at the ICC in its crosshairs. It has already declared seven Palestinian civil society organizations as “terrorist” organizations, including al-Haq, the leading human rights organization responsible for leading advocacy regarding the ICC case. In August 2022, the Israeli army shut down their offices in Ramallah and welded their doors shut, leaving behind military orders banning the organizations.

That crackdown will no longer be possible in the same way. 

Regardless of Israel’s reaction, Alian says, “the move is part of a larger global change on Palestine, in which Israel will no longer be above international law.” 

“Netanyahu may or may not be arrested, but the days of Israel’s crimes passing by without being legally challenged are over,” he adds.