The International Judicial System vs. Israel Reactions and Significance

The ICJ hearing (ICJ X account, May 24, 2024)

The ICJ hearing (ICJ X account, May 24, 2024)

Karim Khan, ICC chief prosecutor (ICC X account, May 20, 2024)

Karim Khan, ICC chief prosecutor (ICC X account, May 20, 2024)

The chief prosecutor with family members of Israeli hostages.

The chief prosecutor with family members of Israeli hostages.

With family members of Palestinian victims (ICC X account, December 3, 2023)

With family members of Palestinian victims (ICC X account, December 3, 2023)

Karim Khan (left) with Mahmoud Abbas in Ramallah (ICC X account, December 3, 2023)

Karim Khan (left) with Mahmoud Abbas in Ramallah (ICC X account, December 3, 2023)

Overview[1]
  • On May 24, 2024, the International Court of Justice in The Hague (ICJ) issued temporary orders regarding the IDF’s activities in Rafah and the humanitarian demands from Israel according to the provisions of the Convention for Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The orders were issued following a lawsuit filed by South Africa against Israel alleging a violation of the Convention.
  • On May 20, 2024, Karim Khan, the chief prosecutor of the International Criminal Court in The Hague (ICC),[2] announced that he had submitted an application for arrest warrants on suspicion of war crimes and crimes against humanity for Yahya al-Sinwar, head of the Hamas political bureau in the Gaza Strip; Muhammed Deif, the commander of Hamas’ military-terrorist wing; and Isma’il Haniyeh, head of Hamas’ political bureau. At the same time, a request was also submitted for warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu, and Defense Minister Yoav Gallant. A panel of judges will decide whether to issue the arrest warrants.
  • The new ICJ order does not demand a halt to the IDF operation in Rafah, but only states that Israel will not carry out actions that could be construed as “genocide” of Palestinians.
  • The request for arrest warrants for Netanyahu and Gallant is unprecedented, since it was the first time the ICC’s prosecutor’s office sought to arrest individuals from a Western country, especially the elected leader of a democratic country. It also created a false equation between the Israeli leaders and senior Hamas terrorists who were responsible for a brutal terrorist attack and massacre in which more than 1,200 people were murdered and more than 240 were kidnapped. Issuing warrants for persons in office may lead to similar measures by the prosecutor’s office against government and military personnel who are no longer in office, which would indicate a lack of trust in Israel’s judicial system.
  • The ICJ ruling and the chief prosecutor’s request were regarded by the Palestinian Authority (PA), Hamas and Palestinian NGOs as important achievements in the lawfare [legal warfare] they have been waging against Israel for years and which they regard as no less important than the armed struggle against Israel (see the Appendix).
  • The Palestinians welcomed the ICJ ruling and the request to issue arrest warrants for Netanyahu and Gallant even though the request included warrants for the Hamas leadership. However, there was doubt regarding Israel’s willingness to stop the operation in Rafah along with criticism of chief prosecutor’s request to issue arrest warrants for the three senior Hamas figures as well.
The ICJ Ruling
  • On May 24, 2024, the International Court of Justice (ICJ) in The Hague issued temporary orders regarding the IDF’s activities in Rafah and humanitarian demands from Israel according to the provisions the Convention for Prevention and Punishment of the Crime of Genocide (the Genocide Convention), as follows (ICJ website, May 24, 2024):
    • Israel must immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.
    • Israel must maintain the Rafah Crossing open for unhindered provision urgently needed basic services and humanitarian assistance.
    • Israel must take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.
The ICJ hearing (ICJ X account, May 24, 2024)
The ICJ hearing (ICJ X account, May 24, 2024)
  • The ruling came after a lawsuit filed by South Africa against Israel on December 29, 2023, alleging that Israel violated its obligations under the Genocide Convention. The court published additional decisions in three previous rounds:
    • On January 26, 2024, the court decided that it had the authority to rule on the petition without determining that Israel was committing genocide. The court also issued preliminary, temporary orders which stated that Israel had to meet its obligations and avoid killing Palestinians and causing conditions that could lead to the full or partial physical destruction the Palestinians in the Gaza Strip; Israel had to prevent incitement to commit genocide of the Palestinians and had to take action against those responsible for incitement; Israel had to act immediately to provide the required humanitarian aid and basic services (ICJ website, January 26, 2024).
    • On February 16, 2024, the court rejected South Africa’s request to issue an order that would prevent Israel from carrying out a military operation in Rafah and stated that the orders issued in January covered the entire territory of the Gaza Strip. However, the judges reiterated the demand that Israel comply with its obligations under the Genocide Convention and ensure the safety of the Palestinians in the Strip (February 16, 2024).
    • On March 28, 2024, the court ruled that Israel had to take all necessary and effective measures to ensure the uninterrupted delivery of required basic services and humanitarian aid to Palestinians throughout the Gaza Strip, including by increasing the capacity and number of land crossings. The ruling came following a request by South Africa which claimed that the humanitarian situation in the Gaza Strip had deteriorated since the orders were issued in January and that there was a famine in the Strip (ICJ website, March 28, 2024).
The significance of the ruling
  • The new ICJ ruling did not order a halt to the IDF operation in Rafah that began on May 7, 2024, only stating that Israel would not carry out actions that could be considered genocide against the Palestinians. It was the fourth time the ICJ rejected petitions submitted by South Africa for the issuance of orders for a complete or partial cessation of the war in the Gaza Strip.
The next stage
  • The ICJ does not have the ability to enforce its rulings, and a UN Security Council resolution is required to give them the legal validity which would oblige Israel to obey them. If the United States decides to use its veto it will be able to prevent the resolution from being passed.
  • If the United States does not use its veto and the UN Security Council passes a resolution demanding an unconditional halt to the activity in Rafah, Israel will be obliged to comply with it. Refusing to comply could lead to international sanctions and to specific international measures, such as terminating security cooperation.
Chief Prosecutor’s Application for Arrest Warrants
Chief prosecutor’s announcement
  • On May 20, 2024, Karim Khan, the ICC chief prosecutor, announced he had issued an application to the pre-trial court to issue arrest warrants on suspicion of war crimes and crimes against humanity for Yahya al-Sinwar, head of the Hamas political bureau in the Gaza Strip; Muhammed Deif, the commander of Hamas’ military-terrorist wing; and Isma’il Haniyeh, head of Hamas’ political bureau. He also applied for a warrant for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Khan noted that the alleged crimes were committed in the context of an international armed conflict between Israel and “Palestine” and a concurrent non-international Israel-Hamas armed conflict (ICC website, May 20, 2024).
  • Khan noted that the request was the result of an “independent and impartial investigation” conducted by the prosecutor’s office, and that an “impartial panel of international legal experts” examined the evidence and confirmed the recommendation regarding the arrest warrants. He said that his office continued examining additional lines of investigation, including reports of sexual violence in the attack on October 7 and widespread attacks that caused many civilian casualties in the Gaza Strip, and that he may file requests for arrest warrants for additional individuals.
  • Khan further that the request for the arrest warrants was part of an investigation into the escalation of hostilities and violence since October 7, 2023, which in turn was part of a comprehensive investigation opened by the chief prosecutor’s office in March 2021 to examine suspicions of crimes committed in the “State of Palestine” all the territories occupied in 1967, including the Gaza Strip and east Jerusalem.
Karim Khan, ICC chief prosecutor (ICC X account, May 20, 2024)
Karim Khan, ICC chief prosecutor (ICC X account, May 20, 2024)
Warrants for Hamas leaders
  • According to Khan, there is a reasonable basis to believe that the three senior Hamas figures have criminal responsibility for the killing of hundreds [sic] of Israeli citizens on October 7, 2023 and for the abduction of at least 245 people. He added that they planned and motivated the commission of the crimes and that their conduct, including visits to the hostages, testified to their degree of responsibility. The crimes against humanity and war crimes attributed to the three Hamas leaders as of October 7, 2023 are:
    • Extermination (crime against humanity);
    • Murder (crime against humanity);
    • Taking hostages (war crime);
    • Rape and other acts of sexual violence in the context of captivity (war crime and crime against humanity;
    • Torture in the context of captivity (crime against humanity);
    • Other inhuman acts in the context of captivity (crimes against humanity);
    • Cruel treatment in the context of captivity (war crime);
    • Outrages upon personal dignity in the context of captivity (war crime).
Warrants for Israel’s prime minister and defense minister
  • Meanwhile, the prosecutor stated that according to the evidence collected, there was a “reasonable basis” to believe that Israel allegedly deliberately and systematically deprived the Gazan civilian population of the necessities for human survival. He claimed that this was carried out by imposing a complete blockade on the Gaza Strip, cutting off water pipes and electricity supplies and attacks on aid workers, and that there were arbitrary restrictions on the transfer of essential supplies even after the crossings had been opened. He alleged Israel used starvation and other acts of violence in an attempt to destroy Hamas, ensure the return of the hostages and [allegedly] collectively punish the civilian population in the Gaza Strip since it is perceived as a threat to Israel. The sections attributed to the prime minister and the minister of defense as of October 8, 2023 are:
    • Starvation of civilians as a method of warfare (war crime);
    • Willfully causing great suffering, serious injury, or cruel treatment (war crime);
    • Willfully killing or murder (war crime);
    • Intentionally directing attacks against a civilian population (war crime);
    • Extermination and/or murder, including in the context of deaths caused by starvation (crime against humanity);
    • persecution (crime against humanity);
    • Other [alleged] inhuman acts (crimes against humanity).
With family members of Palestinian victims (ICC X account, December 3, 2023)    The chief prosecutor with family members of Israeli hostages.
Right: The chief prosecutor with family members of Israeli hostages. Left: With family members of Palestinian victims (ICC X account, December 3, 2023)
Implications
  • The chief prosecutor’s request to issue warrants for Netanyahu and Gallant was unprecedented, the first time such warrants have been sought for an elected leader of a western democratic country. It may set a precedent for the chief prosecutor’s handling of investigations involving Western countries, now and in the future. Besides the investigation of Israel, the other case currently on the prosecutor’s desk dealing with Western countries is the investigation of suspicions of war crimes and crimes against humanity committed by American forces during the war in Afghanistan, beginning in 2003. There is also the possibility an investigation may be initiated of the forces of other Western countries that participated in the American-led coalition.
  • It is also the first request for arrest warrants as part of the ICC investigation of the “situation in Palestine,” which has been ongoing March 2021 and which examines suspicions of crimes committed since June 13, 2014 (Operation Protective Edge) in the Gaza Strip, Judea, Samaria and east Jerusalem. Issuing arrest warrants for the current prime minister and defense minister may lead to similar measures by the prosecutor’s office against government officials and military personnel who are no longer in office and who the prosecutor may think there are reasonable grounds to believe were involved in crimes allegedly committed during the period under investigation.
  • The request for arrest warrants for Netanyahu and Gallant, and the nature of the factors specified in the request, show that the prosecutor is currently focusing on the humanitarian aspect of the Israeli government’s policy in the war in Gaza and not on the military activity. The prosecutor’s statement shows that he is of the opinion that the government made the decision to [allegedly] use starvation against the civilian population in the Gaza Strip, and stating that he wants to blame “two of those most responsible,” indicates the possibility that he may later request the issuance of arrest warrants for additional members of the government. In addition, since he said that he was also investigating the attacks in the Gaza Strip, the possibility of taking steps against military personnel can also be assumed.
  • The chief prosecutor’s request has significant flaws with regard to the humanitarian activity that forms the basis of his claims against Netanyahu and Gallant: he noted that the Erez Crossing was closed for a long period of time, but made no reference to the fact that Hamas terrorists took over the crossing on October 7, 2023, and completely destroyed it, and therefore it could not be activated until the beginning of May 2024. He accused Israel of closing the Rafah Crossing, but Israel took control of the Palestinian side of the crossing only on May 7, 2024, and until then it was under the control of Egypt and Hamas in the Gaza Strip. He also ignored the fact that humanitarian aid in large quantities enters the Gaza Strip every day through a number of land crossings from Israeli territory, in addition to the sea pier established by the United States Army and in addition to airlifts (Israeli Coordinator of Government Activities in the Territories website). He also did not address the fact Hamas operatives themselves took control of aid shipments entering the Gaza Strip and prevented them from reaching needy civilians and they shot at the Kerem Shalom Crossing, which is used to transfer the aid.
  • The chief prosecutor sought to justify the announcement combining requests for arrest warrants for both terrorist leaders and Western state leaders by arguing that the law had to be applied equally to avoid the appearance of its being applied indiscriminately. However, his decision to join the two, especially in light of the atrocities committed on October 7, 2023, creates an appearance of equating the parties and sends a negative signal regarding the right of Israel, and of any democratic country, to fight terrorism threatening its citizens, especially after the murder of more than 1,200 civilians and the kidnapping of more than 240.
  • Moreover, the request to issue warrants for leaders in Israel, seven months after the start of the war, also raises questions as to whether the prosecutor’s office was not influenced by external factors, such as the global anti-Israel and anti-Semitic protests or by considerations of popularity. The ICC prosecutors did not open an investigation of the civil war in Syria that began in March 2011 and did not take measures against President Bashar al-Assad and other senior officials of the Syrian regime and security forces who were responsible for war crimes and crimes against humanity, including the deliberate killing of hundreds of thousands of the country’s citizens and the displacement of millions.
  • The chief prosecutor’s announcement Khan referred to the principle whereby the ICC “shall be complementary to national criminal jurisdictions,” that is, it can investigate suspicions of war crimes and crimes against humanity and file indictments if it concludes that the country in question is not investigating the suspicions within its own institutions or is not prepared to investigate them. Until now, there has been a consensus in international legal courts and in many countries that the civilian and military justice systems in Israel effectively handle suspicions of committing crimes and promote legal proceedings when necessary, but Khan has shown that he does not share this position.
  • Furthermore, issuing arrest warrants for Netanyahu and Gallant could have far-reaching consequences for additional legal proceedings against Israel and Israeli personalities, such as the proceedings in the lawsuit filed by South Africa against Israel at the ICJ. In addition, issuing arrest warrants a lack of trust in the Israeli judicial system in Israel, which will automatically also allow courts in various countries around the world to institute criminal proceedings against decision-makers and military personnel and arrest them if they enter the countries.
  • If arrest warrants are indeed issued, it will significantly harm Netanyahu and Gallant’s freedom of movement, they will not be able to visit countries which, while they are allies and friends of Israel, they are required to meet their obligations under the Rome Convention, including all 27 countries of the European Union and the United Kingdom. A number of European countries have already declared explicitly or implicitly that they would obliged to arrest Prime Minister Netanyahu if a warrant were issued against him and entered their territory (Israeli media, May 21 and 22, 2024). In addition, if arrest warrants are issued it will become difficult for friendly countries to maintain regular political relations with the prime minister and the defense minister because of their being under suspicion of having allegedly committed war crimes and crimes against humanity. They may also reconsider continuing security and military ties with Israel, as well as with academic institutions and companies in the private sector. On the other hand, if an arrest warrant is issued for Isma’il Haniyeh, his risk of arrest is lower because the countries he usually visits, Qatar and Turkey, are not members of the Rome Convention, while Iran and Egypt have not ratified the Convention and therefore have no obligation to implement arrest warrants.
The next steps
  • The panel of judges in the first pre-trial deliberations will decide if there are “reasonable grounds to believe” that the individuals who appear in the prosecutor’s request have indeed committed crimes over which the court has jurisdiction. The judges can accept the request in full or reject it, or partially accept the request and issue arrest warrants for some individuals or reject some suspicions. Making the decision public is expected to take between several weeks and several months. The arrest warrant for the Russian President Vladimir Putin was issued within a month of the submission of the request, while the arrest warrant for former Sudanese President Omar al-Bashir, was issued after eight months.
  • If the judges approve the issuance of arrest warrants, the suspects will be able to voluntarily present themselves to the ICC for a hearing at the pre-trial court before the judges decide whether to approve the charges. If the suspects refuse to come to the court, the 124 member states of the Rome Convention, which regulates the ICC’s activities, are obligated to arrest the suspected individuals if they arrive within their jurisdiction and hand them over to the Court, although from past experience, they have not always complied.
Reactions in the Palestinian Arena
  • The ICJ’s ruling and the request of the identified chief prosecutor to issue arrest warrants constitute an important achievement for Palestinian lawfare, that is, anti-Israel legal warfare, a key element in the attempt to delegitimize Israel which that PA, Hamas and Palestinian NGOs have been waging against Israel for years. The activity includes contacting international legal courts and encouraging the establishment of international commissions of inquiry. The purpose of Palestinian lawfare, alongside political activity, is to restrict Israel’s ability to fight terrorism, to discredit Israel in international public opinion, smear Israel’s image and erode the credibility of the State of Israel’s governmental institutions. In March 2023, a conference on lawfare was held in the Gaza Strip and recommended the adoption of legal confrontation as a basic method of Palestinian “resistance” in the international arena and the establishment of a team of jurists to submit cases to the ICC regarding alleged Israeli “violations.” Speakers at the conference emphasized that the legal “struggle” was as important as the “armed struggle” [violence and terrorism] against Israel.[3]

Karim Khan (left) with Mahmoud Abbas in Ramallah (ICC X account, December 3, 2023)
Karim Khan (left) with Mahmoud Abbas in Ramallah (ICC X account, December 3, 2023)

  • The Palestinians welcomed the ICJ ruling and the request for arrest warrants for Netanyahu and Gallant. However, the they expressed doubts about Israel’s willingness to stop the operation in Rafah and criticized the chief prosecutor’s request to issue arrest warrants for the three senior Hamas figures as well:
The Palestinian Authority (PA)
  • The ICJ ruling: A statement issued by the office of the Palestinian “president” welcomed the ruling and called on the international community to compel Israel to implement the court’s decisions. According to the statement, Israel considered itself to be above international law and could not be held accountable due to the biased, blind support from the United States. It also thanked the countries that stood by the Palestinian “right” (Ma’an, May 24, 2024).
  • The request for arrest warrants: Wasel Abu Yusuf, a member of the PLO Executive Committee, claimed the chief prosecutor’s request “confused the victim and the executioner.” He added that the ICC had to issue arrest warrants for the Israeli officials who were continuing the [alleged] crimes of “genocide” in the Gaza Strip (swissinfo website, May 20, 2024) Ahmed Majdalani, also a member of the PLO Executive Committee, praised the request. He called it a step in the right direction, although it came very late (Sputnik website in Arabic, May 20, 2024).
Hamas
  • The ICJ ruling: The Hamas movement welcomed the ruling but did not hide its disappointment that the decision related only to the cessation of “Israeli aggression” only in Rafah and not in the entire Gaza Strip. Hamas also called on the international community to expert pressure on Israel to compel it to comply with the decision (Hamas Telegram channel, May 24, 2024).
  • Senior Hamas member Osama Hamdan accused Israel of trying to evade implementing ICJ ruling (al-Jazeera Telegram channel, May 25, 2024).
  • Adhem Abu Salmiya, a Hamas operative from Deir al-Balah who lives in Istanbul, wrote that the world now regarded Israel as a “rogue” country which committed genocide against the Palestinian people, especially after it responded to the Court decision with an attack on Rafah. He added that Israel failed in its attempt to present itself to the world as an “oasis of democracy in the heart of darkness” and that today it was perceived by the Western collective consciousness as a “fascist” state that [allegedly] committed war crimes and did not obey international law (Adhem Abu Salmiya’s X account, May 25, 2024).
  • The request for arrest warrants: The Hamas government information office in the Gaza Strip issued a statement condemning the request for arrest warrants for Hamas leaders, claiming the victim was being equated with the executioner and that the request was based on “false and fabricated” Israeli propaganda regarding October 7, 2023. Hamas called chief prosecutor’s decision regarding Netanyahu and Gallant a “legal step in the right direction,” even though it came late and only after multiple pleas, when the announcement called for the arrest of all “war criminals” in Israel (Hamas government information office Telegram channel, May 20, 2024).
  • Senior Hamas member Sami Abu Zuhri also claimed the request for arrest warrants for al-Sinwar, Deif and Haniyeh equated the victim with the executioner. He said that the decision encouraged Israel to continue its [alleged] “war of extermination” in the Gaza Strip (Reuters, May 20, 2024).
  • Ibrahim al-Madhoun, a Hamas publicist, claimed it was “ridiculous” for the ICC to equate Hamas with Israel, and that Israel should be held accountable for its [alleged] “crimes against humanity and the war of extermination” (Ibrahim al-Madhoun’s X account, May 20, 2024)
The Palestinian Islamic Jihad (PIJ)
  • The ICJ ruling: The PIJ stated that the ruling did not fulfill the aspirations of the Palestinian people to stop the “aggression” and did not guarantee the full opening of all the crossings, but it “exposed the Zionist entity at the legal level and deepened the rift between Israel and the institutions” (al-Aqsa TV Telegram channel, May 24, 2024).
  • The request for arrest warrants: The PIJ claimed that the prosecutor had merely made a request to issue arrest warrants for Netanyahu and Gallant, ignoring hundreds of actions by Israeli military forces since October 7, 2023. The PIJ called it a small and late step in the right direction, but also condemned the recommendation to issue arrest warrants for three of the Hamas leaders (PIJ media information bureau Telegram channel, May 20, 2024).
The Palestinian media
  • The ICJ ruling: An editorial in al-Quds wondered whether Israel would implement the decision and comply with it, or whether the pace of aggression would accelerate and Israel would ignore international conventions and UN resolutions “for the second, third and tenth time?!” (al-Quds, May 25, 2024).
  • The request for arrest warrants: According to the al-Quds editorial, the chief prosecutor had tried to seek a diplomatic solution, as equating the murderer and the murdered, the executioner and the victim and the jailer and the prisoner would achieve a balance of justice, but the truth was that the recommendations were a “great crime” against the Palestinian issue and paved the way for Israel to continue its “aggression” and its “occupation of Palestine.” The editorial also claimed that the American position against the ICC was sufficient to describe the global “conspiracy” against “Palestine” (al-Quds, May 21, 2024).
  • Ashraf al-Ajrami, the former minister of prisoner affairs in the Palestinian government, wrote that the prosecutor’s request for arrest warrants for Netanyahu and Gallant was a “very important step” in prosecuting Israel and trying it for its “crimes,” and which could lead to important developments related to the Palestinian people in the international arena. He said that the Palestinians should cooperate with the international courts and provide them with their documents and evidence “that convict Israel and expose its crimes.” He said “the international arena is the most important arena of conflict and war and that no effort should be underestimated, no matter how small.” It was also noted that the war against Israel was long and complicated, and required every possible effort and energy, not only from the Palestinians but also from “the brothers and friends around the world” (al-Ayam, May 22, 2024).
  • Amar Jamhour wrote in the PA-affiliated al-Hayat al-Jadeeda that the request for arrest warrants [allegedly] placed Netanyahu and Galant among the “criminals of history.” he added that the request for the warrants, together with the declaration of three European countries (Ireland, Spain and Norway) to recognize a Palestinian state was a double blow for Israel, which claimed was now not only fighting against the Palestinians, but against all the peoples of the world (al-Hayat al-Jadeeda, May 23, 2024).
Alaa' al-Laqta cartoon of the ICC [allegedly] equating the executioner and the victim (Popular Conference of the Palestinians in the Dispersal X account, May 21, 2024)    Palestinian cartoon of "wanted posters" for Netanyahu and Gallant (al-Quds, May 21, 2024).
Right: Palestinian cartoon of “wanted posters” for Netanyahu and Gallant (al-Quds, May 21, 2024). Left: Alaa’ al-Laqta cartoon of the ICC [allegedly] equating the executioner and the victim (Popular Conference of the Palestinians in the Dispersal X account, May 21, 2024)
Appendix: Palestinian Activity at the ICC
  • On January 21, 2009, the PA requested membership in the ICC for the first time. It was rejected on the grounds that only a state internationally recognized as such could accept the Court’s jurisdiction. However, said the Prosecutor at the time, since only when the Palestinian Authority became recognized as a state by the committee of the Rome Statute’s member states or by the UN, the Court would reconsider the request.
  • On November 29, 2012, Resolution 67/19 recognized the PA as a “non-member observer state,” which enabled the PA to ratify the Rome Statute. On January 2, 2015 the PA ratified the Statute and on January 6, 2016, the UN General Assembly, with power of attorney from the ICC, confirmed it.
  • In January 2015 the ICC received a document from the Palestinian government stating it had accepted the jurisdiction of the ICC on June 13, 2014. The UN Secretary General announced he had received the Palestinian documents about ratifying the Statute (AP, January 7, 2019).
  • Immediately thereafter the Palestinians began intensive activity for an ICC investigation of Israel. They presented the Prosecutor with detailed documents about what they called Israel’s “crimes” in Judea, Samaria and the Gaza Strip. Senior Palestinian figures repeatedly demanded that the Prosecutor initiate an investigation against the Israeli leadership regarding the “crimes” Israel allegedly carries out against the Palestinian people. The threat of an appeal to the ICC turned into a permanent Palestinian threat against Israel, reiterated on every possible occasion.
  • Following the Palestinian appeals, on January 16, 2015, ICC Prosecutor Fatou Bensouda announced she had opened a preliminary investigation of the situation in “Palestine” to examine whether there was cause to open a Court investigation. The preliminary examination is not an investigation, but rather a process of examining existing information to determine whether there is cause to continue the investigation according to the Rome Statute conditions. Moreover, the Court said that it would decide, based on the facts and circumstances of every incident, whether to continue collecting information to have enough for a legal foundation to decide about opening or not opening an investigation. According to the Rome Statute, the preliminary investigation has no time limit (ICC website, January 16, 2019).
  • On March 3, 2021, prosecutor Bensouda announced that she had decided to open an investigation by the tribunal against Israel on suspicion of committing war crimes in the “Palestine case,” and this after the pre-judicial tribunal of the tribunal determined on February 5, 2021 that the tribunal had jurisdiction. The investigation referred to crimes allegedly committed in the territories of Judea and Samaria, east Jerusalem and the Gaza Strip starting on June 13, 2014,[4] and this in accordance with the request of “Palestine.”[5]
  • On June 25, 2023, eight members of the Palestinian Legislative Council submitted a lawsuit to the ICC on behalf of Hamas in the Gaza Strip against Israel on the grounds of committing “war crimes and crimes against humanity” against the residents of the Gaza Strip since 2007, and especially due to the damages caused by the “siege” on the Strip. The lawsuit was filed with the help of European lawyers who specialize in filing lawsuits against Israel at the ICC.[6]
  • On November 17, 2023, the ICC’s office of the prosecutor confirmed it had expanded the investigation into the “situation in Palestine” to include the escalation of hostilities and violence since the attacks of October 7, 2023. The announcement came after a request lodged by South Africa, Bangladesh, Bolivia, the Comoros Islands and Djibouti.
  • On December 29, 2023, South Africa submitted a request to the ICJ for proceedings against Israel, alleging violations of Israel’s obligations in the Gaza Strip under the Genocide Convention. South Africa asked the Court to issue orders to “protect against further, serious and irreversible damage to the rights of the Palestinian people under the Genocide Convention.”
  • On January 26, 2024, the court ruled that it had the authority to rule on the petition without determining that Israel was [alleged] committing genocide. The court also issued preliminary temporary orders which stated that Israel had to meet its obligations and avoid killing Palestinians and causing living conditions that could lead to the physical destruction of all or some of the Palestinians in the Gaza Strip; Israel had prevent incitement to commit genocide against the Palestinians and act against those responsible for the incitement; Israel had to act immediately to provide humanitarian aid and basic services required (ICJ website, January 26, 2024).
  • On February 16, 2024, the court rejected South Africa’s request to issue an order that would prevent Israel from carrying out a military operation in Rafah and stated that the orders issued in January covered the entire the Gaza Strip. However, the judges reiterated the demand that Israel comply with its obligations under the Genocide Convention and ensure the safety of the Palestinians in the Strip (February 16, 2024).
  • On March 28, 2024, the court ruled that Israel had to take all necessary and effective measures to ensure the uninterrupted delivery of the required basic services and humanitarian aid to Palestinians throughout the Gaza Strip, including by increasing the capacity and number of land crossings. The ruling came following a request by South Africa which claimed that the humanitarian situation in the Gaza Strip had deteriorated since the orders were issued in January and that there was a famine in the Strip (International Court of Justice website, March 28, 2024).

[1] Click https://www.terrorism-info.org.il/en to subscribe and receive the ITIC's daily updates as well as its other publications.
[2] The International Court of Justice (ICJ) in The Hague deals with claims between states. It has no enforcement authority, and the implementation of its orders requires a decision by the UN Security Council. The International Criminal Court (ICC) in The Hague deals with criminal prosecutions against individuals who were accused of responsibility (allegedly committed or ordered to commit) serious crimes including genocide, crimes against humanity and war crimes. Its decisions are binding on all the signatory countries to the Rome Convention (signed in 1998 and establishing the International Criminal Court); Israel and the United States are not signatories.
[3] For further information see the March 27, 2023 report, "Weaponizing the Law Conference in the Gaza Strip to discuss the legal battle against Israel."
[4] The day after the kidnapping and murder of three Israeli boys in Gush Etzion by Hamas terrorists, an event that led to an extensive operation by Israeli security forces to detain Palestinian terrorist operatives in Judea and Samaria, and subsequently to the Operation Protective Edge in the Gaza Strip (July 8 - August 26, 2014).
[5] For further information, see the March 7, 2021 ITIC report, "Palestinian responses to the International Criminal Court’s opening an investigation of Israel."
[6] For further information, see the July 3, 2023 ITIC report, "Hamas operatives seek to prosecute Israel in the International Criminal Court in The Hague."