(Editor’s Note: This article is part of our new symposium on the ICC and the Israel-Hamas war.)
The dramatic decision of the ICC Prosecutor, Karim Khan to request arrest warrants for three senior Hamas leaders and two senior Israeli leaders has been received by a mixture of acclamation and criticism. While many see this step as an important affirmation of the rule of international law at these dangerous times, others – on both sides of the aisle (see e.g., here and here) – have criticized the moral equivalence which the Prosecutor allegedly drew between the two sides to the conflict (oppressed/oppressor or terror group/democratic state).
In this article, we do not wish to engage with broader policy questions about the choices made by the Prosecutor with respect to the identity of the individuals targeted by the request, the choice of crimes alleged and the decision to issue simultaneously the requests pertaining to the five Hamas and Israeli leaders. We will also not deal here with the long-running debate concerning the Court’s jurisdiction over Israel – a state which has never joined the Rome Statute. Rather, we wish to identify and discuss here some potential problems we identify in the part of the request pertaining to Netanyahu and Gallant, at least as it was presented in the Prosecutor’s short announcement and by the expert report supporting it. We suggest that these problems could entail factual and legal complications that might prove detrimental to the prosecution’s case at different stages of the proceedings.
Legal classification of the conflict
At the heart of the Prosecutor’s case against Netanyahu and Gallant lies the crime of intentional starvation as a method of warfare. Granted, the Prosecutor also listed other alleged violations of the Rome Statute, such as the war crimes of willfully causing great suffering, or serious injury to body or health or cruel treatment, willful killing or murder, and intentionally directing attacks against civilians, and Crimes against Humanity such as extermination, murder, persecution, and other inhumane acts. However, all of these additional charges appear to be based on a similar factual foundation – Israel’s policies of depriving Palestinian civilians access to humanitarian relief, including food, water and medicine essential to their survival.
Intentional starvation, it should be noted, appears as a crime under the Rome Statute only with regard to international armed conflicts (IAC) (a 2019 amendment to the Rome Statute applying the crime also to non-international armed conflicts (NIAC) was ratified by only 14 countries to date, the State of Palestine not being one of them). This means that in order to even raise the possibility that the specific crime of intentional starvation was committed, the Prosecutor must classify the conflict as an IAC. Indeed, the Prosecutor, in his statement, claimed that there are two parallel armed conflicts taking place in the Gaza strip: an IAC between Israel and the State of Palestine, and a NIAC between Israel and Hamas.
As a matter of existing law, there is little disagreement, we believe, surrounding the Prosecutor’s assertion that the current armed conflict between Israel and Hamas constitutes a NIAC. This is consistent with widely-accepted criteria for classification of armed conflicts between States and non-State actors (NSAs) (see also here). Indeed, Hamas is a highly organized group, it is certainly not representing a State, and the intensity of the hostilities, including the number of casualties is very high. The more difficult questions, which the Court would have to decide, is whether there is also an IAC taking place in parallel to the NIAC, and whether acts and omissions comprising the crime of intentional starvation took place in the context of the IAC.
The report of the Panel of experts, supporting the Prosecutor’s request advances three alternative theories relating to the classification of the conflict as also an IAC. The first is that Palestine is a State, on whose territory the conflict has taken place. On this theory, whenever one State uses force on the territory of another State, there is an IAC, even if the force is directed against an NSA (potentially resulting in the parallel application of NIAC as with respect to hostilities between the State and non-State armed groups). The second theory is that the State of Palestine acceded to the Geneva Conventions, and that because there is a conflict between Israel and Palestine, common article 2 applies, and hence the four Geneva Conventions apply alongside the rules of NIAC. The third theory is that the Gaza Strip was under belligerent occupation by the State of Israel either before Oct. 7 or since. Although all three theories are plausible, none of them is free of doubt, however, and the Court might be expected to spend much time and effort parsing their precise contents and relevance to the situation at hand.
The first two theories are based on the assumption that Palestine is a State for all intents and purposes. This is, however, a problematic assumption. Granted, the Pre-Trial Chamber of the ICC decided in 2021 that the Prosecutor of the ICC may commence an investigation in the Palestine situation on the basis of the appropriateness of the procedure by which the office of Secretary General chose to accept Palestine’s accession instruments. The Court emphasized, however, that its decision is limited to the issue of jurisdiction under article 12 to the Rome Statute. In fact, the court went far to explain that its decision is not a decision regarding the status of Palestine under international law. In paragraph 108 of the decision, the court wrote:
Indeed, given the complexity and political nature of statehood under general international law, the Rome Statute insulates the Court from making such a determination, relying instead on the accession procedure and the determination made by the United Nations General Assembly. The Court is not constitutionally competent to determine matters of statehood that would bind the international community. In addition, such a determination is not required for the specific purposes of the present proceedings or the general exercise of the Court’s mandate.
The partly dissenting judge on the Pre-Trial Chamber, Judge Péter Kovács, went even further to reject the statehood claim under general international law, and wrote that “all the indicia show that it is premature to speak of a full-fledged ‘State’ and of ‘the territory of the State’” (para. 10).
Still, to the extent that the Prosecutor relied on the first two theories referred to by the panel of experts, he appears to have done exactly what the Pre-Trial Chamber cautioned against: He apparently did engage with the highly charged question whether Palestine is a State under international law for the purposes of applying customary international humanitarian law (including the triggers for IAC), the Four Geneva Conventions and the Rome Statute’s IAC war crimes provisions, effectively compelling Israel to treat Palestine as a State, notwithstanding its persistent opposition to the latter’s statehood claim (several other States have also refrained to date from recognizing Palestine as a State, and even some of those who have, have not necessarily done so for all purposes and intents) (see e.g., Talmon).
Accordingly, by way of an example, the Pre-Trial Chamber’s prior decision to treat Palestine as a State for accession purposes does not address whether the use of force by Israel in Palestinian territory without the Palestinian Authority’s consent triggers an IAC, especially if Israel has a reasonable basis to conclude Palestine is not a State for those or other purposes. The Prosecutor is treading on new ground that the court identified as legally fraught for itself to even consider.
The approach of the Prosecutor to the statehood issue is even more difficult if we take into account the bilateral legal relationship in place between Israel and the Palestinian Authority (PA) or Palestinian Council, formed under the 1995 Interim Agreement. Article IX(5)(a) of the Interim Agreement explicitly stipulates that the Council of the Palestinian Authority “will not have the powers and responsibilities in the sphere of foreign relations”; this and other limits on sovereignty introduced by the Agreement clearly shows that the parties did not intend to treat the PA as a full-fledged State throughout the duration of the Interim Agreement. Whereas the formal legal status of 1995 Agreement is unclear at present, both parties still adhere to certain key elements of the Oslo framework. Whether the growing international recognition of the State of Palestine can overcome Israel’s refusal to recognize it and its attachment to the Oslo framework for a negotiated final status arrangement, with the effect of designating the Israeli-Palestinian conflict an IAC, is hardly a clear-cut issue (cf. Judge’s Kovács’ opinion, at para. 308).
Finally, the bifurcation of a conflict into IAC and NIAC – a theory which is not free from controversy – see e.g., here at note 45) – would seem to work well with regard to norms designed exclusively to protect civilians and norms designed exclusively to regulate hostilities between armed groups. This was in fact the situation in the ICC’s Lubanga case, which involved a conflict involving an NSA and a situation of belligerent occupation. Still, the application of both frameworks to military operations directed specifically against the non-State armed group but incidentally impacting the protection of civilians (e.g., rules on targeting or siege) is bound to create greater complexities and confusion. Opting in such cases always for the rules of IAC – for the State party – and NIAC – for the non-State party – as theoretically proposed by Akande could further accentuate legal asymmetries by introducing different bodies of substantive international criminal law norms to govern the conduct of the two sets of belligerents. And indeed, such asymmetry was apparently produced by the Prosecutor’s approach, as the list of alleged crimes against the Israeli leaders include those committed in IAC and NIAC, and the ones against the Hamas leaders are only those committed in a NIAC.
Occupation Law
The third theory advanced by the panel of experts, that Israel has duties under IAC as the occupying power in the Gaza Strip, is by far the most consequential of the three. It relates not only to the classification of the conflict as an IAC or NIAC, but also to the substantive obligations of Israel to provide access to humanitarian provisions that Israel owed to the civilian population in the Gaza strip prior to the October 7th Hamas’s attack on Israel and in its aftermath.
In the report, the panel of experts noted “three preliminary points relevant to its analysis”: the post-2005 dependency of Gazans on Israeli utilities provided to them, the prohibition on arbitrary restrictions on access to humanitarian aid, and the duty to ensure adequate levels of humanitarian supplies in occupied territories. In the latter context, the panel noted that while “it can reasonably be argued that Israel was the occupying power in Gaza even before October 7, 2023, Israel certainly became the occupying power in all of or at least in substantial parts of Gaza after its ground operations in the territory began.” In support of this last proposition the panel cited a legal opinion from Israeli academics, submitted on April 1, 2024 to the Israeli Supreme Court in connection with proceedings relating to access to humanitarian aid in Gaza, where the academics opined that North Gaza is at present under belligerent occupation, noting in that regard the IDF’s statement of Dec. 19, 2023 that it had obtained operational control over North Gaza.
This legal analysis raises some problems as well. Arguably, the three preliminary points attempt to contextualize the policy of deprivation of objects indispensable for survival against the legal obligations of Israel toward the Gaza Strip. We agree that determining the scope of Israel’s obligations serves as important premise for evaluating the criminality of the conduct attributed to Netanyahu and Gallant. This is because only acts that are in violation of international law obligations can constitute international crimes. Still, as the panel hinted, the status of the Gaza Strip as occupied territories before October 7 has been contested, with a non-negligible body of international law experts, including at least one Academic Expert associated with the panel, opining in the past that it was not occupied post-2005. And while the Israeli Supreme Court decided in 2008 that Israel must continue to provide essential services to Gaza, notwithstanding the end of occupation, due to the actual dependency of the civilian population on Israel, it is far from clear whether and on what legal basis Israel was legally required to continue and provide services to a non-occupied Gaza Strip a decade and a half later. If indeed Israel did not occupy the Gaza Strip on October 7– a position which we believe is confirmed by the massive amount of military force Israel had to deploy in order to reoccupy parts of the Gaza Strip – then the decision taken very shortly after October 7 to stop providing basic services, which Israel considered to be a policy decision, would be seen in a different light (see below).
Whereas the panel of experts concedes that there may be a disagreement surrounding the occupation of Gaza before October 7, it still submits that after the ground invasion started, all or substantial parts of the Gaza Strip became occupied. We do not disagree with the conclusion that at some point after October 27 – the day in which the ground operation started – parts of Gaza became occupied, but we submit that this could only have taken place after Israel assumed effective control over these parts. It could certainly be argued that the situation on the ground since mid-December 2023 justifies the conclusion that Israel is the occupying power in at least the Northern parts of the Gaza strip – as maintained in aforementioned legal opinion from April (of which one of the authors is a signatory). It is far more difficult, to maintain that before the assumption of operational control in North Gaza – i.e., around mid-December 2023, some six weeks after the launch of the invasion – this was already the situation on the ground. As a result, the policy decisions adopted by Netanyahu and Gallant in the first stages of the war, before effective control was consolidated, should be evaluated against the backdrop of mostly negative legal obligations to allow aid into areas of the Gaza Strip not under Israel’s effective control (duty to facilitate/enable aid) and not against the backdrop of more demanding positive legal obligations to provide aid (duty to ensure aid) or not under IAC rules at all, if the only basis for the IAC is an occupation.
Intent
The most difficult aspect of the request for arrest warrant relates, in our mind, to the question of intent. This is not surprising given that the crime of starvation (article 8(2)(b)(xxv) of the ICC Statute) – the centerpiece of the request – requires special intent. While the court has yet to pronounce itself on the precise conditions for establishing special intent for the crime of starvation, we can assume that it will follow the literature on the topic, which suggests that special intent can be met by either deliberately starving civilians or deliberately depriving objects indispensable to survival with the knowledge that it is virtually certain to lead to civilian starvation.
In this regard, the request and the report do not engage with important contextual aspects, which could serve as the basis of the defense which Netanyahu and Gallant would mount, and which could cast doubt on whether it can be shown that Netanyahu and Gallant actually intended to starve the population of Gaza (or to engage in parallel war crimes and crimes against humanity related to the starvation policy, although one should note that these other crimes may be subject to somewhat different actus reus and mens rea conditions). It would be interesting to see whether the full request submitted by the Prosecutor to the Pre-Trial Chamber engages directly and adequately with these contextual aspects:
- The initial closing of border crossings between Israel and the Gaza and cutting off supply of utilities was mostly the result of the October 7 attacks, during which Hamas destroyed the Erez and Kerem Shalom crossing points and cut electricity and water transmission lines (destroying 9 out 10 electric lines and 1 out of 3 water lines). Given the harm inflicted by Hamas on Israel’s capacity to provide Gaza with humanitarian aid in the immediate aftermath of the October 7 attack, and the existence, at the beginning of the war, of local electricity and water production capacity, as well as stockpiles of food and other essential products, the actual impact of the highly controversial decision to declare a “complete siege” on the Gaza Strip in the first days after the attack is less than clear; as we note below, the “complete siege” policy actually lasted only one week.
- When read against the backdrop of the 2008 Israeli High Court of Justice decision (Bassiouni), the decision to apply a “complete siege” on Gaza does not necessarily imply the purpose of starving civilians, as alleged by certain international commentators. This is because other policy objective were also at play. Indeed, in Israel, the decision to cut off direct supplies, such as water and electricity, was understood by leading Israeli commentators as a form of sanction against the Hamas-controlled territory, and as a step toward completing the 2005 disengagement of Israel from Gaza, entailing the reversal of a policy of providing Israeli economic support to Gaza, which Israel considered in the years following 2005 to be emanating, first and foremost, from its own interest in stabilizing the humanitarian situation inside the Gaza Strip, and not from a sense of legal obligations toward the population in Gaza. Even if Israel accepted, in effect, some “post-occupation” legal obligations to provide the Gaza Strip with water and electricity in the immediate years after the 2005 disengagement, it was increasingly questioned within Israel whether it had a continuing legal duty to do so in perpetuity.Netanyahu articulated this new approach in his Oct. 18, 2023 statement – “we will not allow humanitarian assistance in the form of food and medicines from our territory to the Gaza Strip.” Note that the statement does not indicate an intent to impede aid coming into the Gaza Strip directly from Egypt through the Rafah crossing (note also that it omitted reference to provision of water, whose supply from Israel already partly restored by the time Netanyahu made the statement).[In this context, we note a rather curious allegation made by the prosecutor. He claimed in his announcement that:
This [the deprivation of objects necessary to human survival] occurred through the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods and then by arbitrarily restricting the transfer of essential supplies – including food and medicine – through the border crossings after they were reopened.
However, to the best of our knowledge, Israel had no control over the Rafah crossing between Egypt and the Gaza Strip until May 2024, and could not have “completely” closed it before that date (and even then it reportedly urged Egypt to facilitate its resumed operation).]
At any rate, the question whether or not this, properly understood, “complete siege” policy amounted to a form of collective punishment (as suggested by the panel of experts) and not a lawful sanction (i.e., a retorsion, under international law), depends on whether Israel was legally obligated in October 2023 to continue to provide Gaza with aid from its own territory or to not interfere with the introduction of aid provided by third parties from its own territory (and not from an alternative crossing in Rafah). Whereas we have serious doubts about the legality of the latter Israeli measure (a total ban on transfer of aid through Israeli territory), one can assume that both Netanyahu and Gallant sought and obtained legal advice and intelligence data on the humanitarian conditions in the Gaza Strip before making the “complete siege” policy decision.
- The infamous Gallant “complete siege” statement of Oct. 9, 2023 actually dealt with a different aspect of the war – it introduced a “complete siege on the city of Gaza” (and not, as was mistranslated in some media outlets, on the “Gaza Strip”). This appears related to military plans to place the Northern part of the Gaza Strip under siege (for a discussion of the legality of this method, see here). Israel has long taken the position, in this connection, that a military objective placed under siege can be denied basic supplies, provided that civilians are allowed to leave the area under siege. Indeed on Oct. 13, 2023 Israel instructed the population of North Gaza to head South (to which the water supply from Israel had already resumed and to where most of the supply trucks were directed), and imposed a full military siege on Gaza City on Nov. 6. It thus appears that at the early stages of the war, limits on access to humanitarian aid to Northern Gaza were linked to the Gaza City siege, and that such limits appear to have been utilized to encourage civilians to evacuate areas of active hostilities. Again, the lawfulness to this tactic appears to us to be questionable: Given the reality in which many civilians could not or did not want to evacuate from the North, the siege as implemented might have been disproportionate. Still, in terms of special intent to starve civilians, the Prosecutor will have to show that it can be implied from a set of measures designed in large part to encourage civilians to leave areas of intense fighting.
- In practice, even if there were initially plans to institute throughout the Gaza Strip a policy of “complete siege.” such plans were quickly abandoned. On Oct. 15, 2023, Israel resumed the flow of water to the Southern part of the Gaza Strip; and on Oct. 21, 2023, the first humanitarian aid convoy entered into the Gaza Strip from Rafah with Israel’s cooperation. Since then there has been a gradual increase in the amount of humanitarian aid entering into the Gaza Strip and a sharp increase in the number of crossing points and distribution avenues. Since March 2024, Israel’s policy has been one of “flooding” the Gaza Strip with humanitarian aid.
- It should also be noted that the duty to provide humanitarian relief, pursuant to customary international law, is not categorical in nature. For example, the US DoD Law of War Manual (5.19.3) stipulates that the duty to allow the passage of relief consignments to the civilian population under siege is only if the commander is satisfied that there is no danger that the consignments will be diverted from their destination, and they will not provide an advantage to the enemy. Indeed, many of the impediments imposed by Israel on the entry of humanitarian convoys into the Gaza Strip have been justified – as the panel of experts note – on concerns regarding diversion of aid to Hamas. There is no shortage of evidence about instances of diversion of humanitarian provisions to Hamas, and while the position of the experts that the impediments must be necessary and proportional appears to us to be appropriate (although it deviates from the language of the DoD Manual), the prosecution will have to show that Netanyahu and Gallant refused to allow aid unnecessarily – e., despite assurances that it would be not be diverted – or in a disproportionate manner – despite expecting that a significant part of the aid would reach population in need despite the possibility of some diversion. Here too, misapplication of balancing formulas provided by IHL does not translate necessarily into special intent to starve civilians, especially when one considers the role of advisors on law and humanitarian policy in the process.
- In this last regard, we note that throughout the first months of the war, Israeli officials in the IDF Unit for the Coordination of Government Activities in the Territories (COGAT) repeatedly maintained that the humanitarian situation in the Gaza Strip is not critical, given pre-war stocks, existing local production capacity and supplies coming in through Rafah. As the situation deteriorated, and as COGAT assessments came under increased international criticism, the number of aid entry points, trucks and water lines increased, and measures to improve distribution were undertaken. Whereas this dynamic hardly gives the Israeli humanitarian aid policies a “clean bill of health,” it might render it difficult for the prosecution to attribute to the Israeli leadership that relied on these IDF assessments an intent to starve the civilian population. In any event, the pattern of changes in policy in response to new information about growing needs in the Gaza Strip (as well as a result of international pressures and representations by international actors about conditions on the ground) does not sit particularly well with a special intent to starve civilians.
- Finally, even now there are conflicting reports and claims concerning the severity of the food situation in the Gaza Strip and the number of victims who died from malnutrition or dehydration (see here and here). In the same vein, there are conflicting claims as to whether the levels of humanitarian aid entering Gaza after the war started are higher or lower than before the war.
To be clear, despite these contextual aspects, we fully believe that the humanitarian aid policies adopted by Israel during the Gaza war have been highly problematic, and perhaps illegal. This is especially with regards to the ban that was in place from the start of the war until the reopening of the Kerem Shalom crossing (Dec. 17, 2023) against providing humanitarian aid from the territory of Israel proper despite mounting evidence that the Rafah crossing could not provide the great demand for aid; foot dragging and bureaucratic delays in facilitating the crossing of aid trucks; and the reluctance to embrace a positive duty to ensure adequate supplies in areas that fell under Israel’s effective control. Such legal failures also imply moral failures and policy failures – resulting in a strong diplomatic and legal backlash. Still, not all failures to meet legal, moral and sound policy expectations translate into war crimes and international criminal law. We believe that it might be difficult in light of disputes over facts and applicable laws, the ever-changing situation on the ground, the conflicting policy goals of the military campaign and the near constant change in humanitarian aid policies and measures, to establish — without direct evidence pointing in this direction — that Netanyahu and Gallant actually intended to starve the population of Gaza.
Complementarity
The principle of complementarity requires that the Prosecutor and the Court defer to national investigative authorities who are willing and able to investigate and prosecute. As the Prosecutor rightly noted in his statement, the principle of complementarity is “at the heart of the Rome Statute.” The Prosecutor went on to note that “complementarity requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham.” The Prosecutor followed here the policy of his Office, which requires a State claiming that it should halt investigation or prosecution because of complementarity to show that an actual investigation regarding the events which are the subject of the prosecution is underway. It is not enough to show that there is a potential for investigation, or that there is an independent judiciary.
These factors explain perhaps why the Prosecutor chose “starvation” as the first set of charges to be brought against the Israeli leadership. As described by the Prosecutor, the issue at hand involved a policy decision to prevent humanitarian relief from entering into the Gaza Strip, or into part of it. Such a policy is a result of the decision taken by the highest levels of government. The alleged responsibility of Netanyahu and Gallant is therefore, in the main, a direct one – responsibility for the commission of the crime – with only a vague reference to indirect superior or command responsibility. The Prosecution claims that that they ordered the IDF to act in a criminal way.
Still, it should be recalled that commencing a war crimes investigation against one’s own service members in real time, when combat action still takes place is extremely difficult for any State. Even established democracies such as the United States and the United Kingdom have been notoriously hesitant to open such investigations in real time. (By contrast, Israel has instituted, in the current war, fact-finding mechanisms that review large numbers of incidents involving alleged crimes. Before the International Court of Justice, Israel recently declared that, by mid-May, hundreds of cases are being reviewed by the fact finding and assessment mechanism in connection with the current war (para. 50 p. 16), and that 55 criminal investigations against soldiers have already been opened). Investigating in real time senior politicians for allegedly adopting unlawful policy decisions during the war is even more difficult. Indeed, it does not appear as if the military justice mechanisms currently employed by Israel could potentially reach the Prime Minister and Minister of Defense. Formally speaking, the Prosecutor appears to be right in concluding that Israel cannot invoke “same person/same conduct” complementarity in this case, at this point in time.
A closer examination of Israel’s legal responses to allegations of IHL violations committed in relation to impediments of humanitarian aid raises, however, certain questions regarding the timing to the request for arrest warrants and the principle of complementarity. First, the High Court of Justice has been seized since in March 2024 by civil society groups, who challenged the legality of the restrictions imposed on humanitarian supplies into the Gaza Strip. Whereas these are administrative law proceedings, not a criminal investigation, a finding of illegality by the Court could serve as the basis for a follow up criminal investigation, as happened in other cases. Furthermore, some relevant incidents are already under military investigation – e.g., the targeting of the World Central Kitchen convoy. Such investigations do overlap with some of the factual and legal issues raised by the Prosecutor, and could throw, in due course, light on the legal responsibility of the senior political leadership for any alleged policy of impeding aid by targeting humanitarian aid workers.
Moreover, the main way by which Israel has traditionally dealt with review of the legality of acts, omissions and policies undertaken by high level officials in connection with armed conflicts has been through the establishment of an independent investigative commission headed by a former justice or judge. This was the case in the Kahan Commission (1982) formed to review the Sabra and Shatilla massacre, and the Winograd Commission (2007-8) formed to review the Second Lebanon war, including questions relating to the application of international law. The best example for this is the Turkel Commission formed to investigate the Flotilla incident (2010). In this latter case, the government also appointed two international observers to the commission, so as to add legitimacy to its conclusions.
The problem here is that forming a commission of inquiry and assigning responsibility on the basis of its findings takes time, and we are not aware of any other case in which a State started an inquiry into policies adopted by its political leadership in the midst of a war they are actively conducting. We also note that Israel was effectively deprived in the circumstances of the case of invoking complementarity under article 18 of the ICC Statute – since the investigation formally opened by the Office of the Prosecutor in 2021 in relation to which complementarity could have been asserted, dealt with other sets of issues. It is therefore troubling in our mind that the Prosecutor rushed to ask for arrest warrants, before a reasonable time that would afford the Israeli machinery for establishing legal violations and ultimately individual responsibility a reasonable opportunity to run its course. It may be recalled in this connection that it is not unfathomable for Israel to place a serving president of prime minister under criminal indictment (see, e.g., Katsav and Netanyahu).
Conclusions
The Prosecutor’s decision to ask the pre-trial chamber to issue arrest warrants against PM Netanyahu and MOD Gallant is an momentous decision, which can potentially strengthen the international rule of law and clarify the legal obligations associated with policies relating to access to humanitarian relief. Still, the novelty and complexity of some of the legal assumption underlying some of the prospective charges, as well as the limited engagement – at this stage of the process – with the full factual and legal context, including complementarity issues, leave many questions unanswered. It remains to be seen whether the Pre-Trial Chamber would deem it fit to address some of these issues in its decision.
Editor’s note: This article has been slightly amended to clarify the authors’ position on complementarity.