Never before had an International Criminal Court (ICC) judge been required to rule on a request submitted by Israel. However, on September 20, a week before Israeli prime minister Benjamin Netanyahu’s planned trip to New York, where he is scheduled to address the UN General Assembly on September 27, the Israeli Foreign Ministry announced the submission of two confidential memoranda to The Hague.

Israel is thus addressing the three judges of the Pre-Trial Chamber, which for over four months has been examining the arrest warrants requested by prosecutor Karim Khan against the Israeli prime minister, his defense minister, Yoav Gallant, and three Hamas officials, Yahya Sinwar, Ismail Haniyeh and Mohammed Deif.

Haniyeh, the political leader of Hamas, was killed in a strike attributed to Israel, in Tehran on July 31, and the head of its armed wing, Deif, reportedly died in a bombardment in the southern Gaza Strip on July 13. The prosecutor withdrew his application for an arrest warrant targeting Haniyeh after obtaining evidence of his death. “It’s remarkable to see Israel accept the legitimacy and standing of the ICC by directly engaging with it,” said Canadian professor of international humanitarian law Mark Kersten.

Influencing decisions

Since Palestine’s accession to the founding treaty of the ICC in April 2015 and the opening of an investigation in March 2021, Israel has never officially engaged in the proceedings, refraining from any actions that could be seen as recognizing the court’s jurisdiction; Israel has not ratified the 1998 Rome Statute that established the ICC. During his visit to Israel and Ramallah in late November 2023, Prosecutor Karim Khan was said to be there on a “private visit,” and he came at the invitation of victims of the October 7 Hamas attack in southern Israel.

Over the summer, dozens of states, lawyers, professors, and think tanks filed briefs in a procedure initiated by the judges at the request of London, which was hoping to prevent the issue of arrest warrants against Israeli officials. Some, like Germany and the Czech Republic, argued in favor of Israel – as if in this legal battle waged for nearly 15 years by the Palestinians, Israel had to use allies.

While no official submission to the judges has yet been made, this has not prevented Israel’s lawyers from being in regular contact with the Court for years, in the hope of influencing its decisions. In December 2019, Israel’s Advocate General delivered a legal opinion to the former prosecutor, announcing her intention to open an investigation. In 2021, he told her that Israel was conducting its own investigations and that the ICC’s intervention was unnecessary. The Court only intervenes as a last resort, if a state is unable or unwilling to prosecute the perpetrators of war crimes, crimes against humanity, and genocide.

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