Amicus Brief- Challenging ICC’s Prosecutor’s Request to Issue Arrest Warrants for Israeli LeadersMonday 12/08/2024

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The Jerusalem Institute of Justice submitted its reservations to the International Criminal Court (ICC) , stating that the tribunal may not exercise its authority over Israeli citizens, in light of the Oslo Accords, which were signed between the State of Israel and the Palestine Liberation Organization (PLO) and regulated the jurisdiction in these territories.

This submission follows a request by the ICC prosecutor to issue arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for their alleged responsibility for war crimes and crimes against humanity. Representing survivors of the Hamas massacre on October 7, the JIJ seeks to challenge the tribunal’s attempt to exert authority over Israeli citizens, contrary to the Oslo Accords. In the documents filed, the JIJ’s legal experts dispute the classification of “Palestine” as a state and argue that the Gaza Strip is not under occupation.

The Jerusalem Institute of Justice shares the ICC’s commitment to fight impunity for serious violations of international law. At the same time, this goal cannot be realized at the expense of circumventing existing legal frameworks. We call on the tribunal to refrain from making unilateral decisions that could damage the peace process.

JIJ unequivocally argued that the Oslo Accords, which govern relations between Israel and the Palestinians, constitute a binding and central legal document recognized internationally. According to these agreements, the Palestinian Authority has no criminal jurisdiction over Israeli citizens and cannot transfer powers it does not possess to the ICC.

The JIJ also noted that in its 2021 decision, the tribunal declared it could not determine whether Palestine was a state. The Chief Prosecutor’s current classification of the conflict, both as an international conflict and as a non-international conflict, stems from uncertainty in the law and its interpretation by the tribunal. This situation affects the types of crimes investigated and creates an imbalance in the application of the law between the different parties.

For an entity to be considered a state and for the conflict to be classified as an international conflict, it must meet four conditions: a permanent population, a defined territory, an effective government, and the ability to engage in international relations. The JIJ argues that Palestine does not meet these conditions, and its unilateral declaration of statehood contravenes the Oslo Accords and is therefore illegal under international law.

The second option for recognizing the conflict as an international confrontation is to acknowledge the occupation. In this respect, JIJ argues that Israel withdrew from the Gaza Strip in 2005 and does not control it, a necessary element for being considered an occupier. Thus, Israel’s current military actions in Gaza are characterized as a response to active hostilities of Hamas, not an occupation.

JIJ emphasizes the need to respect existing agreements and the rules of international law and warns against any modifications, deviations, or reinterpretations of these agreements by the tribunal. The Institute further notes that, to ensure a clear and fair legal framework in Israeli-Palestinian relations and to prevent unilateral decisions that could jeopardize the peace process, the tribunal must uphold what the parties agreed to in the Oslo Accords and the boundaries defined therein.

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