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The Rome Statute and the ICC’s Palestine Investigation

On 21 November 2024, the International Criminal Court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. The charges — crimes against humanity and war crimes in Gaza — marked a moment Palestinians and their advocates had waited a decade to see, ever since Palestine quietly deposited its instrument of accession to the Rome Statute on 2 January 2015. That deposit, and the political battles it triggered, set in motion the longest jurisdictional argument in the Court’s history.

How Palestine Came to the Rome Statute

Palestine’s path to the ICC was neither swift nor simple. After the United States blocked a UN Security Council referral on the 2008–2009 Gaza war, Palestinian leaders pursued statehood recognition through the General Assembly instead. On 29 November 2012, UN General Assembly Resolution 67/19 upgraded Palestine’s status to “non-member observer state” — the legal threshold the Rome Statute’s Article 125 requires for accession by non-UN members.

Two years later, following the collapse of Oslo-framed negotiations and during the 2014 Gaza war in which UN OCHA recorded more than 2,200 Palestinian deaths, the Palestinian Authority lodged a declaration under Article 12(3) accepting ICC jurisdiction retroactively to 13 June 2014. The formal accession followed on 2 January 2015, with the Rome Statute entering into force for Palestine on 1 April 2015. Palestine simultaneously referred the “situation in Palestine” to the Prosecutor, covering the occupied West Bank including East Jerusalem, and Gaza.

Israel, which has signed but never ratified the Rome Statute, immediately rejected the Court’s jurisdiction. The United States, also not a party to the Statute, announced it would withhold a portion of U.S. aid to the Palestinian Authority in response — a preview of the coercive pressure that would intensify a decade later.

Prosecutor Karim Khan Opens a Formal Investigation

For five years the situation languished in a preliminary examination, largely under Prosecutor Fatou Bensouda. The jurisdictional question — whether the Court had authority over territory not recognised as a state by all its members — was finally resolved on 5 February 2021, when a Pre-Trial Chamber ruled by majority that the ICC’s territorial jurisdiction extended to Gaza and the West Bank, including East Jerusalem, on the basis of Palestine’s status under the Rome Statute.

Barely a month later, on 3 March 2021, newly appointed Prosecutor Karim Khan announced the formal opening of an investigation. The scope was broad: alleged crimes committed by Israeli forces, Hamas, and other Palestinian armed groups. Khan stated that his office had found “a reasonable basis to believe that war crimes and crimes against humanity have been committed in the West Bank, including East Jerusalem, and the Gaza Strip.” Legal scholars, including Noura Erakat, whose work traces the architecture of international law as applied to Palestinian dispossession, noted that the investigation was nonetheless years overdue and faced structural constraints — the ICC can only prosecute individuals, and enforcement depends entirely on state cooperation.

Israel launched an intensive diplomatic campaign to obstruct the inquiry. The U.S. under the Biden administration expressed “serious concerns” about jurisdiction. Hungary and several other governments signalled they would not cooperate in any arrest. The pattern was familiar to observers of the Court.

The Arrest Warrants: Netanyahu, Gallant, and the Gaza Siege

The 7 October 2023 Hamas-led attack on southern Israel — in which Israeli authorities reported approximately 1,200 people killed — and Israel’s subsequent military campaign in Gaza accelerated the ICC’s timeline sharply. OCHA and the WHO documented catastrophic civilian casualties and the near-total destruction of Gaza’s health infrastructure throughout 2023 and 2024. UNRWA reported the displacement of the vast majority of Gaza’s 2.3 million residents at various points during the campaign.

On 20 May 2024, Prosecutor Khan applied for arrest warrants for Netanyahu and Gallant, as well as for three senior Hamas leaders: Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh. The Hamas applications focused on the 7 October attacks; the applications against the Israeli officials centred on the use of starvation as a weapon of war, wilful killing, and attacks on civilians — charges tied to Israel’s blockade and bombardment of Gaza.

After separate Pre-Trial Chamber deliberations, the Court issued the arrest warrants on 21 November 2024. Netanyahu and Gallant were charged with the war crime of using starvation as a method of warfare and with crimes against humanity including murder, persecution, and other inhumane acts. The warrants for Sinwar and Haniyeh had been rendered moot by their deaths earlier in 2024; a warrant for Deif remained under consideration. All 124 states parties to the Rome Statute are legally obligated to arrest the named individuals should they enter their territory.

Comparing al-Bashir and Putin: A Pattern of Non-Enforcement

The Netanyahu and Gallant warrants sit within a troubling pattern of ICC warrants against sitting or former leaders that member states have declined to execute. The most instructive comparison is Omar al-Bashir, the Sudanese president against whom the ICC issued arrest warrants in 2009 and 2010 for genocide, crimes against humanity, and war crimes in Darfur. Al-Bashir travelled freely to Rome Statute states — including South Africa in 2015 — without being arrested, prompting the Court to find South Africa in non-compliance. He was not transferred to the Hague until after his own government fell.

The warrant for Russian President Vladimir Putin, issued in March 2023 over the unlawful deportation of Ukrainian children, produced a similar dynamic. Putin attended the BRICS summit in South Africa in 2023 via videolink rather than in person, precisely because South Africa, as a state party, faced an obligation to arrest him. The warrant nonetheless demonstrated that the Court was willing to act against leaders of major military powers — a precedent that reinforced, at least symbolically, the universality argument Palestinian advocates had long made.

Legal scholar Rashid Khalidi has argued that international law has historically been applied selectively against the weak and the Global South. The Netanyahu warrant was, in that reading, an incomplete but significant rupture — the first time the Court had moved against a close ally of the United States and Western Europe.

Washington’s Response: Sanctions and the Limits of Enforcement

The United States’ reaction was swift and punitive. The Biden administration condemned Khan’s May 2024 warrant application as “outrageous,” and Congress moved to advance legislation authorising sanctions against ICC officials involved in the Palestine investigation. After the November 2024 warrants were issued, President-elect Donald Trump’s incoming national security team signalled that sanctions would be among the first executive actions of the new administration. In February 2025, the Trump administration imposed sanctions on Prosecutor Khan personally, freezing any U.S.-linked assets and barring him from financial transactions in the American system.

The sanctions drew condemnation from the Assembly of States Parties and from human rights organisations including Amnesty International and Human Rights Watch, both of which described the measures as an assault on the independence of international justice. The ICC Presidency issued a formal statement asserting the Court’s independence under the Rome Statute. For Palestinians, the episode underscored a structural reality Noura Erakat and others have documented: international legal mechanisms can name violations and issue mandates, but enforcement remains hostage to geopolitical will.

What Palestine’s accession to the Rome Statute achieved — after a decade of procedural delay, diplomatic obstruction, and outright coercion — was a formal, documented legal record. Whether that record translates into accountability, or joins the long shelf of unexecuted international obligations toward Palestinians, remains an open question.

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