Arrest warrants for Netanyahu and Galant will undoubtedly be issued soon

On 26 July, 2024, the office of British Prime Minister, Keir Starmer, announced that his government will not be adopting the appeal filed by the Conservative government before the International Criminal Court (ICC), and that it will not interfere in the work of the Court in issuing arrest warrants against Netanyahu and Defence Minister, Galant. This announcement came after long hesitation and issuing of conflicting statements, thus reflecting the quandary caused by the Conservative government which filed this request during the elections.

Keir Starmer’s government has definitely received a legal opinion from the new Attorney-General illustrating that there is no legal basis for this appeal, which could also lead to the new government being accused of obstructing the proceedings of the Court and of appearing as defending suspects of serious crimes.

The Zionist lobby’s response to this statement was angry accusations of the new government of radically changing its policies towards Israel, viewing it as a strategic and moral mistake. The lobby particularly pointed fingers at the new Attorney-General, Mr. Richard Hermer, who submitted a legal opinion to the government, confirming the ICC’s jurisdiction.

READ: Israel asks 25 countries to intervene against ICC arrest warrants for Netanyahu, Gallant

Despite the government withdrawing its appeal, the damage has already been done in obstructing the issuance of arrest warrants because, when Britain filed the appeal before the Pre-Trial Chamber, the ICC announced opening the door for any requests known as “Amicus Curiae”, or “friend of the court request”, to help the judges decide on the appeal.

The Court received enormous requests demanding permission to submit such requests and, on 22 July, 2024, the Pre-Trial Chamber issued a decision granting permission to dozens of institutions, individuals and countries to make their submissions no later than 6 August 2024.

Dozens of institutions, individuals, and countries that are against the Court’s jurisdiction over the Israelis have obtained permission to make submissions challenging the legitimacy of issuing the arrest warrants while, on the other hand, dozens of institutions, countries and individuals have been granted permission to submit their requests supporting the Court’s jurisdiction.

While these procedures are taking place, the Palestinian people are still waiting for justice to be achieved, partially or symbolically. Despite the serious crimes committed daily and for decades against the Palestinians, none of the international bodies have been able to investigate the crimes and hold their perpetrators accountable. All the Palestinian people have received are timid condemnations and resolutions kept in the drawers of the United Nations.

The establishment of the ICC and the entry into force of the Rome Statute on 1 July, 2002, provided room for prosecuting some of these crimes when the State of Palestine referred the crimes committed since 13 June, 2014, and beyond.

Since that date, the files presented to the Office of the Prosecutor have been going through a very slow process that continued for years until Karim Khan announced on 20 May, 2024, that he had submitted a request to the Pre-Trial Chamber to approve arrest warrants against Netanyahu and Yoav Galant.

This announcement came as a shock to Israel and its allies, who threatened and accused the Court of anti-Semitism. Britain, led by the Conservative government, opened the door to obstructing the issuance of arrest warrants against the suspects.

The focus of the British appeal is based on a clause in the Oslo Accords that states that the Palestinian Authority has no jurisdiction over Israeli citizens and, therefore, cannot transfer this jurisdiction to the International Criminal Court. Furthermore, the Office of the Prosecutor did not negotiate with the Israeli side to explore Israel’s willingness or ability to investigate the crimes presented in accordance with Article 1 of the Court’s Statute.

READ: US pressuring new UK government to uphold legal challenge to ICC arrest warrants

The judges should have ruled on these points, given their extensive knowledge of the provisions of international humanitarian law and the difficult reality the Palestinians are living under the Occupation. However, they decided to open the door to intervention by various parties, thus obstructing the issuance of arrest warrants for several months.

This opinion is supported by the fact that the Court had previously ruled on issues raised when the former Prosecutor asked it to determine the scope of territorial jurisdiction. When the question of whether Palestine is a State or not was raised, opponents of the Court’s jurisdiction focused on the fact that Palestine is not a State and, therefore, the Court has no jurisdiction.

The Court responded to these arguments by saying that Palestine joined the Rome Statute in accordance with the recognised procedures, and it also has a position and status in the United Nations. Moreover, this issue is part of international public law and the judges do not have the authority to decide on it, as it is not within the Court’s jurisdiction to decide on the status of the State.

Had the Court taken into account the Oslo Agreement, it would not have reached this conclusion. The Oslo Agreement prohibits the self-rule authority from acting as a State and joining international organisations. It can only sign agreements with international donor parties in the name of the PLO for purely economic purposes.

We can certainly say that the judges at the International Criminal Court had two issues to deal with; the first is the self-rule authority that arose from the Oslo Agreement and the second is the State of Palestine that arose in its capacity by virtue of a resolution of the United Nations General Assembly. Hence, it dealt with the positive effects of the second and ignored the first, which does not concern it at all.

Therefore, it was easy for the judges to reach such a conclusion. Assuming the validity of the Oslo Agreement, it becomes binding on the signatories and not on any third party and, where any dispute arises from this agreement, it would be determined by the agreement itself, which has determined the mechanism for resolving the dispute. The International Criminal Court is not the right place for this because it exercises its jurisdiction in accordance with the Rome Convention, which became superior to any internal law or bilateral agreement when ratified by the State of Palestine.

There are several issues that the International Criminal Court will not discuss because it is not the competent authority to address them. We mention these here to clarify the ruling of international law. The clause in the Oslo Agreement is considered absolutely null and void, and becomes non-existent as it violates a mandatory rule in the Fourth Geneva Convention that prohibits any authority under Occupation from relinquishing judicial authority in favour of the Occupation (Fourth Geneva Convention Articles 8, 47, 146).

READ: Netanyahu fears potential ICC arrest warrants for Gaza crimes by 24 July

The Oslo Accords have been invalid since their signing due to violating the mandatory rules of international law. They have aborted many of the rights stipulated in these rules, most notably the right of the Palestinian people to self-determination.

Assuming that the Oslo Accords are sound; it is considered one of the initial agreements to achieve peace. It has a specific time frame, where the transitional period extends from three to five years from the date of signing to begin negotiations on the final solution. However, Israel exploited the agreement to control the land and to establish settlements, and no negotiations succeeded in achieving the desired goals. September 13 will mark 31 years since the signing of the Oslo Accords, which means that the Oslo Accords have become null, void and invalid for 27 years. This was reinforced by the advisory opinion of the International Court of Justice issued on 19 July.

Anyone arguing that it is a valid international treaty would lack proper legal arguments, as all arguments have a political nature derived from deceptive reality whereby an authority was established on the ground, but has no control over anything except serving the Occupation.

One of the basic conditions for concluding treaties is consent and freedom of will, which the Palestinian side did not enjoy when it negotiated and signed the agreement, in addition to the goodwill when implementing it, where the Occupation implemented the terms of the agreement as it pleased, thus foiling the negotiations for a final solution, expanding its settlements and controlling the land.

If the Court accepts the aforementioned Oslo clause, we will be faced with an abnormal situation that gives immunity to Israeli citizens, where the Court would only be able to prosecute crimes committed by non-Israelis. This would be legally and logically unacceptable, and would violate the purpose for which the International Criminal Court was established, to prevent perpetrators from escaping punishment.

The jurisdiction of the Court is strengthened by the five countries which referred the situation in Palestine according to Article 13 (a) and Article 14 of the Rome Statute, and these countries are South Africa, Djibouti, Bolivia, Comoros and Bangladesh.

The second point is that the Office of the Prosecutor did not engage in negotiations with the Israeli side to explore the ability of the Israeli judiciary to consider crimes, given that the jurisdiction of the Court is complementary to the jurisdiction of national courts.

Relying on this point is unrealistic, given the fact that, since the Occupied Territories were subject to the jurisdiction of the International Criminal Court, Israel has not conducted any serious investigation to prosecute those responsible for the crimes, including the Prime Minister and ministers. This seems impossible to implement, as they have reinforced the principle of impunity over the decades of Occupation.

Despite this obstruction and the Pre-Trial Chamber’s handling of the appeal in a procedural manner that is time consuming, we are confident that the appeal will never be accepted. The efforts of all the enemies of the Court who submitted a “friend of the court request” will go down the drain, as this is not the first time they have rallied to obstruct the proceedings.

Successive British governments inherited the historical injustice that befell the Palestinians, and no government took any measures to remove this injustice but, rather, they all mobilised all kinds of support for the Occupation government. In addition to inheriting the historical injustice, the new Labour government is also inheriting today a heavy burden of accusations of the previous government’s involvement in committing war crimes, crimes against humanity and the crime of genocide.

In order to atone for its guilt, the new government should not have only withdrawn the appeal, but also provided a full explanation to the Court as to why the government withdrew the request, which undoubtedly weakens the position of those opposed to the Court’s jurisdiction.

The government must also take bolder steps to maximise efforts to stop the genocide, most notably stopping the export of all kinds of weapons to Israel, as the suffering of the people in the Gaza Strip is beyond imagination, and the Occupation government led by Netanyahu has lost its mind due to the support it receives from the colonial Western countries.

OPINION: West divided over ICC arrest warrants for Netanyahu, Gallant

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.