Norway: Oslo Accords are no bar to Gaza war crimes trial

Brokers of 1993 peace deal weigh in on case as US debates sanctions on International Criminal Court

Israel's Shimon Peres signs the Oslo Accords in 1993, watched by US president Bill Clinton and Palestinian leader Yasser Arafat. AFP

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Norway has said a Middle East peace deal it brokered in 1993 is no barrier to a Gaza war crimes trial, as pro-Israeli lawyers try to use it to derail the case.

The Oslo Accords are "not relevant" to whether the International Criminal Court can hear a case against Israeli and Hamas leaders, lawyers for Norway told the court.

Judges will hear a counter-argument that the accords give Israel "sole criminal jurisdiction" over its citizens in Palestine.

More than 60 states and lobbyists are presenting a legal view to the court as it considers arrest warrants sought by prosecutor Karim Khan.

Norway's 10-page submission telling the court it "should exercise its jurisdiction over Palestine" is the first by a country to be made public.

It comes as a senior US senator told The National that claims of war crimes should be left to Israel's judiciary, amid a backlash from Washington against the ICC.

"We have a democratic country, [we should] allow their system to move first," said Democrat Ben Cardin, chairman of the Senate's foreign relations committee.

The 10-month conflict in Gaza has led to allegations of war crimes against Israel and Hamas leaders. AFP

Mr Khan accuses Israel's Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant of using starvation as a means of war in Gaza.

He also sought arrest warrants against three Hamas commanders – two of whom have since died – over the October 7 attack on Israel.

While Israel is not an ICC member, Mr Khan's argument is that the case against Israeli leaders is about the situation in Palestine, which is a member.

Oslo argument

A key argument from the pro-Israel camp is that if Palestinians cannot prosecute Israelis under the Oslo Accords, the ICC cannot do so in their name.

Signed in 1993 after secret talks in Norway, the agreement was meant to be the first step in a peace process that ultimately lost its way.

A 1995 deal known as Oslo II paved the way for Palestinian self-government but Israel retained "sole criminal jurisdiction" over its citizens.

However, Norway says nothing in the ICC's founding text (the Rome Statute) suggests that "agreements such as the Oslo Accords are of any relevance".

"Since Palestine has acceded to the Rome Statute, the Court should exercise its jurisdiction over Palestine according to the Statute," it says.

Israeli Prime Minister Benjamin Netanyahu is accused by the ICC chief prosecutor of using starvation as a military tactic in Gaza. EPA

Norway's argument, signed by legal director Monica Furnes, says even if the accords are relevant, they "cannot be interpreted" as ruling out the ICC.

The accords "were meant to be temporary" and Palestinian officials did not agree to permanently waive their rights, it says.

"Any restrictions on the exercise of aspects of its jurisdiction are no more than that: an undertaking, within the context of the Oslo Accords, not to exercise aspects of its jurisdiction vis-a-vis Israel.

"But none of those sovereign rights have thereby been abandoned by Palestine; they can therefore be conferred by Palestine on the Court."

Norway is one of several European countries, along with Ireland, Spain and Slovenia, which have recently recognised Palestinian statehood.

ICC prosecutor Karim Khan sought arrest warrants against two Israeli and three Hamas leaders in May. Reuters

US debate

Submissions from the US and Germany, who are expected to take a pro-Israeli position, have yet to be made public.

Republican US senator Lindsey Graham is submitting his own pro-Israeli views, amid a split in Congress over how strongly to push back against the ICC.

“I want to read [Mr Graham’s] brief but I would think that I will be in agreement with what he's trying to do,” Mr Cardin said.

He said that "Israel's not a member of the ICC, so I agree with the content".

In May, US Secretary of State Antony Blinken told Mr Graham at a committee hearing that he would “welcome working with” the senator on developing sanctions against the ICC. “I want to take actions, not just [use] words,” Mr Graham told Mr Blinken.

US Senator Ben Cardin, centre, applauds during an address by Benjamin Netanyahu, right, to Congress last month. Bloomberg

Jim Risch, the top-ranking Republican on the committee, says he is holding up diplomatic appointments over Mr Cardin's refusal to bring proposed sanctions on the ICC before the Senate.

Mr Cardin denied the ICC was the source of the dispute. He said the characterisation was "just not accurate" and appeared frustrated with the hold-up on vacant ambassador's posts. Celeste Kmiotek, a lawyer for the Strategic Litigation Project at the Atlantic Council, told The National that US sanctions on the ICC "would send the message that powerful states can work to block geopolitically unfavourable investigations”.

“If the US efforts ultimately prevent arrest warrants, it will not only exacerbate the hurdles the ICC already faces in terms of resources and jurisdictional limitations that prevent it from holding certain states accountable, but will also lend additional credence to the claims of double standards,” she said.

Israel's offensive in Gaza is also being studied over genocide claims by the International Court of Justice, a separate body to the ICC.

Pro-Palestinian lawyers cite a recent ICJ ruling that declared Israel's occupation illegal as another sign the Oslo Accords can be trumped by the laws of war.

An argument advanced by other lawyers is that the accords are moot since Israel has effectively turned its back on them.