On May 20, the Prosecutor of the International Criminal Court (ICC) applied for arrest warrants against three Hamas leaders and two Israeli leaders alleging war crimes and crimes against humanity committed in Israel and Gaza on and after October 7, 2023. Many observers expected the Court’s Pre-Trial Chamber to issue a decision, one way or another, based on the crimes alleged and the evidence presented, by the end of July. That now seems unlikely.

On June 10, the United Kingdom requested permission to file an amicus curiae submission discussing “[w]hether the Court can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords.” On June 27, the Pre-Trial Chamber granted the U.K.’s request. The U.K.’s 10-page submission is now due on July 26. Yesterday, it was reported that the U.K.’s new government may withdraw its request. But some delay now seems unavoidable.

While the Chamber emphasized that its decision “must not be understood as an open call by the Chamber for amicus curiae submissions,” it gave other States and interested parties until July 12 to request to file their own submissions. The Chamber will then decide which requests to grant and set another deadline for submissions. As a result, the Chamber may not decide on the request for arrest warrants until the end of August or later.

The Chamber’s decision was unexpected. On a plain reading of the ICC Statute, the crimes alleged fall within the Court’s subject matter and temporal jurisdiction (arts. 5 & 11) and the individuals named fall within the Court’s personal jurisdiction (arts. 25 & 26). The preconditions to the exercise of the Court’s jurisdiction are met, as the conduct in question occurred on the territory of a State Party, namely Palestine (art. 12(2)(a)). The situation in Palestine was also referred to the Prosecutor by several States Parties, including by Palestine in 2018, by Bangladesh, Bolivia, Comoros, Djibouti, and South Africa in November 2023, and by Chile and Mexico in January 2024 (arts. 13 & 14).

In my view, this plain reading of the Statute should have sufficed for the Chamber to “satisfy itself that it has jurisdiction in any case brought before it” (art. 19(1)) and to issue arrest warrants based on the evidence. Challenges to the jurisdiction of the Court that go beyond the plain text of the Statute should have been left to the accused, or to a State which also has jurisdiction and is investigating or prosecuting the same individuals for substantially the same conduct (art. 19(2)). It seems that ship has sailed.

According to the U.K.’s request, “the Oslo Accords issue concerns whether Palestine could delegate criminal jurisdiction over Israeli nationals to the Court, in circumstances where the Oslo Accords themselves make it clear that Palestine itself does not have criminal jurisdiction over Israeli nationals.” In 2020, arguments along these lines were submitted to the Pre-Trial Chamber by various amici, and were opposed by the Prosecutor and by other amici. The Chamber (with a different composition of judges) found that such arguments over personal jurisdiction were “not pertinent” to the issue of territorial jurisdiction then under consideration and did not address them further. The Chamber found that Palestine is a State Party to the Statute and (by majority) that the Court’s territorial jurisdiction extends to Gaza and the West Bank, including East Jerusalem. The “Oslo Accords issue” was left for another day. That day has come.

The Oslo Accords: No Bar to Jurisdiction

Briefly, the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II) between Israel and the Palestine Liberation Organization transferred some powers and responsibilities from the Israeli military government and civil administration to a Palestinian Interim Self-Government Authority or “Council” established for a transitional period that ended in 1999. The agreement says that “[t]he territorial and functional jurisdiction of the Council will apply to all persons, except for Israelis, unless otherwise provided in this Agreement” and an annex says that “[t]he criminal jurisdiction of the Council covers all offenses committed by Palestinians and/or non-Israelis in [specified] Territory [including Gaza].” The U.K. apparently plans to argue that Oslo II entails that the State of Palestine either lacks or may not exercise jurisdiction over Israeli nationals who commit war crimes and crimes against humanity on its territory, and therefore cannot delegate such jurisdiction or its exercise to the Court. Palestine cannot give what it does not have. Nemo dat quod non habet.

This line of argument rests on a false premise. Under the ICC Statute, States Parties do not delegate, transfer, or otherwise give their jurisdiction to the Court. Instead, States Parties accept the jurisdiction of the Court (art. 12(1)) which is governed by the provisions of its Statute (art. 1). Palestine is a State Party, and thereby accepts the jurisdiction of the Court. As explained above, the necessary preconditions to the exercise of the Court’s jurisdiction are met. That should be the end of the matter. Neither the Court’s jurisdiction nor its exercise is limited by Oslo II, or by any of Palestine’s bilateral agreements or internal laws. Indeed, a State Party cannot accept the Court’s jurisdiction or its exercise in part, that is, over some individuals, territory, or crimes but not others. It is all or nothing. As the Chamber said in its earlier ruling,

By becoming a State Party, Palestine has agreed to subject itself to the terms of the Statute and, as such, all the provisions therein shall be applied to it in the same manner than to any other State Party. Based on the principle of the effectiveness, it would indeed be contradictory to allow an entity to accede to the Statute and become a State Party, but to limit the Statute’s inherent effects over it. … In addition, denying the automatic entry into force for a particular acceding State Party would be tantamount to a reservation in contravention of article 120 of the Statute. … The fact that the Statute automatically enters into force for a new State Party additionally confirms that article 12(2)(a) of the Statute is confined to determining whether or not “the conduct in question” occurred on the territory of a State Party for the purpose of establishing individual criminal responsibility for the crimes within the jurisdiction of the Court.

While the Chamber did not rule on the “Oslo Accords issue,” its reasoning entails that the Oslo Accords cannot limit the Court’s personal jurisdiction any more than they can limit the Court’s territorial jurisdiction.

Loose talk of “delegation” is often harmless. But taken too seriously, the idea that States delegate their jurisdiction to the Court threatens to rewrite the Statute and subvert its object and purpose. As Leila Sadat argues, ICC jurisdiction is not a patchwork stitched together from 124 national jurisdictions, subject to the vagaries of their national laws and international agreements. Instead, ICC jurisdiction is a unified regime established by its Statute and constrained by statutory requirements of State acceptance, State referral, and complementarity. These statutory constraints ensure that an independent permanent court can exist and operate in a world of sovereign States. But constraints on jurisdiction are not delegations of jurisdiction.

The U.K. asks “[w]hether the Court can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords.” It can. As Sadat observes, cases may arise in which the Court can exercise its own jurisdiction even though a State Party cannot exercise its own jurisdiction. A State Party may lack domestic legislation covering all international crimes or modes of liability. Or a State Party may grant its own officials immunity or amnesty from criminal prosecution, or otherwise limit the jurisdiction of its courts over certain persons or specific conduct. In such cases, the Court can do under the Statute what States Parties cannot do under their internal law.

Similarly, if a State Party agrees not to exercise its jurisdiction over nationals of another State, that agreement does not limit the Court’s exercise of its own jurisdiction. A narrow qualification arises under Article 98(2) of the Statute, which provides that the Court will not request a State Party to surrender a national of a third State in violation of an international agreement that specifically requires the consent of that third State to surrender its nationals to the Court (which Oslo II does not). But if that very same person appears on the territory of another State Party which is not bound by such an agreement, then the Court may request that other State Party to surrender the person. This only confirms that the Court has jurisdiction over the person and may exercise its jurisdiction with one statutory limitation.

In such cases, States Parties do not do through the Court what they cannot do themselves (as is sometimes suggested). States Parties do not do anything through the Court. As Sadat underscores, the Court is an independent institution with international legal personality. It acts for itself, not on behalf or as an instrument of its member States.

The legal validity of Oslo II, and its binding force on the State of Palestine, is doubtful. As an agreement between an occupying power and a people under prolonged occupation, it would seem both procured by the use of force and to conflict with the peremptory right of the Palestinian people to self-determination. But leave all that aside. As argued by the Prosecutor and by leading scholars, the relevant provisions of Oslo II at most constitute an agreement by Palestine not to exercise its enforcement jurisdiction over Israeli nationals on its territory. Such an agreement does not bind the Court or limit its jurisdiction in any way. In the unlikely event that the Court requests Palestine to surrender an Israeli national, Palestine may face a conflict between its obligations under Oslo II and its obligations under the Statute. If so, then that would be Palestine’s problem, not the Court’s problem. Similarly, even if the Oslo Accords were part of Palestine’s internal law, any limits it might place on the jurisdiction of Palestine’s legislature (to prohibit certain conduct), courts (to try certain cases), or police (to arrest certain persons) would not constrain the Court. States can arrange their internal law as they see fit, but when they accede to the ICC Statute, the law of the Statute applies in full.


The details of the U.K.’s argument—assuming it still advances one—remain to be seen. Other amici will likely emerge and raise different variations on the same theme. Some may warrant further discussion, while others may be dismissed out of hand. For now, it is enough to say that any argument that relies on the theory that States delegate their jurisdiction to the Court and thereby subject the Court to their own legal constraints should be rejected. The delegation theory is just that: a theory. It is an interesting theory. But it is not the theory of the ICC Statute.

In resolving the “Oslo Accords issue,” or any other issue, the Court shall apply “[i]n the first place, [the] Statute” (art. 21). As in the Chamber’s earlier ruling, “the issues under consideration primarily rest on, and are resolved by, a proper construction of the relevant provisions of the Statute.” Under the Statute, the Court has and may exercise jurisdiction over any adult person accused of committing war crimes or crimes against humanity on the territory of a State Party. That includes Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant. The Chamber should issue warrants for their arrest, based on the evidence presented, without further delay.

IMAGE: International Criminal Court Prosecutor Karim Khan speaks during an interview with AFP at the Cour d’Honneur of the Palais Royal in Paris on February 7, 2024. (Photo by DIMITAR DILKOFF/AFP via Getty Images)