by Yonah Jeremy Bob
Unlike prior rounds of debate on these issues which took a year or more, it appears that the ICC’s Pre-Trial Chamber will try to reach a decision within several months at most.
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Israel and the International Criminal Court Prosecutor have been engaging in an almost weekly duel of legal briefs in their third round of fighting over whether a “State of Palestine” exists that can grant the ICC judges jurisdiction over war crimes probes against Israelis.
At stake is whether the ICC Prosecutor can move forward with its case and arrest warrants against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant after suffering a setback decision on April 24 from the ICC Appeals Chamber.
These arrest warrants have shaken Israel’s legitimacy worldwide and threaten additional stark, negative, diplomatic, economic, legal, and other consequences.
But on April 24, the ICC’s Appeals Chamber gave Israel a rare and pleasant surprise when it stalled the prosecution’s progress against Israelis by saying that its lower court needed to review Jerusalem’s objections to the ICC’s jurisdiction more carefully than it had before.
This is really the third battle over whether there is a “State of Palestine” that can give the ICC jurisdiction to go after Israelis, following two prior wins for the Palestinians on the issue at the lower court level in 2021 and November 2024.
This came after the ICC Prosecutor filed legal briefs against Israel’s positions on June 18, June 27, and July 2, with the Palestinian Authority also filing multiple briefs during this period.
All of the briefs relate to Israel’s May 26 legal submission to push forward after its April 24 partial victory at the ICC Appeals Chamber, so as to try to get the case tossed completely as being beyond ICC jurisdiction.
This would be because there is no State of Palestine or because the Oslo Accords from the mid-1990s prevent the PA from granting jurisdiction to the ICC to go after Israelis, pending resolution of the peace process between Israel and the PA over their mutual future borders.
Some of the arguments Israel is hoping will win this time are that the PA has no set territory and no control over Gaza, especially after the current ongoing 21-month war, as well as arguments about the Oslo Accords holding back the ICC, which Jerusalem feels were summarily dismissed in the past without a serious analysis.
STILL, ISRAEL faces an uphill battle.
Israel tries to freeze arrest warrants against Gallant, Netanyahu
Jerusalem already tried on May 9 to use its win before the ICC’s Appeals Chamber to get that same court to freeze the arrest warrants which the ICC’s lower court had approved against Netanyahu and Gallant, but the Appeals Court rejected that request.In the middle of all of this, over May 17-18, ICC Chief Prosecutor Karim Khan took an indefinite leave from his position due to unrelated allegations of sexual assault committed by him against an ICC employee.
In his absence, instead of the ICC’s Assembly of States Parties appointing a single acting chief prosecutor, it confusingly appointed both of his deputies to run the office.
These deputies, Mame Mandiaye Niang (Senegal) and Nazhat Shameem Khan (Fiji), have consistently divided their roles between criminal investigations and the later stages of prosecution.
When the ICC’s prosecution filed its brief to fight back against Israel on May 21, Shameem Khan signed the papers over Karim Khan’s printed signature.
She has continued to sign later briefs, signaling that she will run the case until his return.
In any event, her approval to continue the Netanyahu and Gallant arrest warrants seems to suggest that even Khan’s extended leave from his position (which could turn into him being fired) will not free Israel from the ICC’s ongoing scrutiny.
One question is whether the chief prosecutor’s deputies will file new charges against Israelis, or whether, given their lesser authority, they will stick to only maintaining the existing probe against Netanyahu and Gallant.
For example, The Wall Street Journal reported that right around when Khan decided to step aside, he was seriously considering going after Finance Minister Bezalel Smotrich and National Security Minister Itamar Ben-Gvir for their support of the settlement enterprise as well as their alleged support of Jewish extremist violence against innocent West Bank Palestinians, such as in Huwara and Jit.
Khan was considering going after Smotrich, Ben-Gvir for support of settlements
In May 2024, there were even reports that some ICC officials wanted Khan to pursue Smotrich and Ben-Gvir and the settlement enterprise first before he decided to target Netanyahu and Gallant in relation to the Israel-Hamas War.The reasoning for targeting Smotrich and Ben-Gvir initially was that there was a greater global consensus against those officials and the settlement enterprise at that point. In contrast, many prominent countries came to the defense of Netanyahu and Gallant.
But because the deputies do not have the same standing as Khan, and given that the Trump administration’s sanctions are deeply harming the ICC’s operations, including around half a dozen staff members leaving to avoid sanctions, Shameem Khan may avoid adding new charges against Israelis at this moment.
Unlike prior rounds of debate on these issues, which took a year or more, it appears that the ICC’s Pre-Trial Chamber will try to reach a decision within several months, at most, and will not let the issue drag out as long.
Yonah Jeremy Bob
Source: https://www.jpost.com/israel-news/defense-news/article-860624
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