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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.


https://mondoweiss.net/2024/05/how-the-icc-case-against-israeli-leaders-was-made-possible/

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