ICC reverses Israel ruling
Appeal judges send case back after lower court makes error of law
Israel has won an important but limited appeal against a decision of the International Criminal Court last November that led to warrants for the arrest of the Israeli prime minister and his former defence minister.
An appeals chamber of five judges ruled yesterday that the three-judge pre-trial chamber had made an error of law on the issue of jurisdiction. The appeal judges unanimously reversed the earlier decision and sent the case back to the pre-trial chamber so that it could rule on the substance of Israel’s challenge.
However, the appeals chamber rejected Israel’s argument that arrest warrants issued by the pre-trial chamber for Benjamin Netanyahu and Yoav Gallant were “inextricably connected” with the chamber’s ruling on jurisdiction, which was issued on the same day. “These warrants were rather issued separately by the pre-trial chamber,” the judges said, “and they are, as such, not before the appeals chamber.”
For that reason, the appeals chamber rejected a request by Israel for the warrants to be suspended while the legal issues were resolved. But the appeal judges observed that when the pre-trial chamber decides on the substance of the jurisdictional challenge it will also have to decide what effect, if any, its decision has on the arrest warrants.
Having asked the appeals chamber to suspend the warrants — and bearing in mind how slowly the court operates — Israel will now have to consider whether to make a similar request of the pre-trial chamber.
Background
On 20 May 2024, the court’s prosecutor Karim Khan KC announced that he had asked the pre-trial chamber to issue warrants for the arrest of Netanyahu and Gallant, who was defence minister at the time, accusing them of war crimes in Gaza.
Six months later, the court disclosed in a press release that that those warrants had been issued.
On the same day, 21 November 2024, the chamber dismissed a challenge by Israel to the court’s jurisdiction.
In a closely argued 44-page challenge on 23 September, Israel claimed it had standing to challenge the court’s jurisdiction under article 19(2)(c) of the court’s governing treaty, the Rome Statute.
That provision allows a jurisdictional challenge by a state “from which acceptance of jurisdiction is required under article 12” of the statute.
Although Israel is not a party to the statute, it argued that article 19(2)(c) gave it standing to challenge jurisdiction as a state of which the accused person is a national — under article 12(2)(b) — and as a non-party whose acceptance of jurisdiction was required under article 12(3).
That argument was rejected by the chamber on 21 November. It said:
In the matter under consideration, the acceptance by Israel of the court’s jurisdiction is not required, as the court can exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine. As soon as there is one jurisdictional basis pursuant to article 12(2)(a) or (b) of the statute, there is no need for an additional one.
This reasoning was based on a heavily criticised pre-trial chamber decision from 2019 refusing the previous prosecutor permission to investigate alleged war crimes in Afghanistan.
Ruling
In its judgment yesterday, the appeals chamber rejected the pre-trial chamber’s reasoning.
Article 12 dealt with the preconditions for the exercise of jurisdiction. Article 19 provided a mechanism for challenging the admissibility of a case or the jurisdiction of the court. But the pre-trial chamber had not explained how the existence of a basis for the exercise of the court’s jurisdiction under article 12(2) related to Israel’s central contention that it had standing to challenge the jurisdiction of the court under article 19(2)(c).
“Despite the correlation between these provisions, they regulate, in principle, different matters,” the appeal judges observed.
The appeals chamber said:
As Israel’s primary assertion is that article 19(2)(c) of the statute permits it to challenge the jurisdiction of the court, it was incumbent on the pre-trial chamber to specifically address why, in its view, Israel is precluded from bringing such a challenge by virtue of article 12(2) of the statute.
The appeals chamber also rejected the pre-trial chamber’s view that it had already ruled on the question of jurisdiction — that it was res judicata, something previously adjudicated. If, as the pre-trial chamber had accepted, interested states would be able to raise jurisdiction arguments at a later stage then why, asked the appeal judges, should res judicata prevent Israel from bringing a challenge under article 19?
Finally, the pre-trial chamber had found that, once warrants had been issued, Israel had standing to challenge its jurisdiction under article 19(2)(b) of the statute read with article 12(2)(b).
Nevertheless, said the appeal judges,
the pre-trial chamber did not actually consider the merits of Israel’s challenge under article 19(2)(b) of the statute, the provision it indicated Israel should have invoked.
Neither did the pre-trial chamber specify why it altered the legal basis to article 19(2)(b) of the statute, despite the fact that Israel’s submissions were specifically centred around article 19(2)(c) of the statute.
In doing so, while noting the entirety of Israel’s submissions regarding article 19(2)(c) of the statute, the pre-trial chamber failed to specifically address Israel’s submissions in connection with this particular legal basis. In particular, the pre-trial chamber omitted to direct itself to Israel’s contentions regarding the scope of article 19(2)(c) of the statute.
In view of the foregoing, the appeals chamber finds that, considered as a whole, the impugned decision insufficiently addresses Israel’s central contention that article 19(2)(c) of the statute permits it to challenge the jurisdiction of the court.
Therefore, the pre-trial chamber committed an error of law by failing to sufficiently direct itself to the relevant submissions brought before it in respect of the particular legal basis underpinning the challenge to the jurisdiction of the court.
The appeals chamber considers that this error materially affects the impugned decision. Had the pre-trial chamber had sufficient regard to the central contention before it, it would have had to directly and specifically address Israel’s standing to bring a jurisdictional challenge under article 19(2)(c) of the statute…
Accordingly, the appeals chamber is of the view that, in light of the preceding considerations, the most appropriate course of action is to reverse the impugned decision and remand the matter to the pre-trial chamber for it to rule on the substance of the jurisdictional challenge.
Second appeal dismissed
Israel also complained that it had not been given an opportunity to show the court that its response to the Hamas invasion on 7 October 2023 was in accordance with international criminal law. Instead of giving Israel notice of his investigation as required by article 18(1) of the statute, the prosecutor had relied on a notice given in March 2021.
Israel said:
The fundamental error committed by the pre-trial chamber is its finding that no “‘new situation has arisen’” and that “no substantial change has occurred in the parameters of the investigation into the situation” since 7 October 2023. This conclusion does not accord with reality or common sense.
In a separate ruling yesterday, the court dismissed this appeal as inadmissible by a majority of three to two. The majority held that the decision not to issue a fresh notice under article 18 was not a “decision with respect to jurisdiction or admissibility” that could be the subject of an appeal under article 82.
Comment
Critics and perhaps also supporters of the International Criminal Court may accuse the appeal judges of giving in to recent international pressure:
President Trump imposed sanctions on the prosecutor in February.
Hungary’s announcement earlier this month that it would be withdrawing from the court could put its current funding from the European Union at risk.
Separately, Khan’s motives in seeking the arrest warrants have come under renewed scrutiny. Last October, the Wall Street Journal suggested that the prosecutor’s announcement of warrants against Israeli leaders on the day he had been planning to hold discussions in Jerusalem — a couple of weeks after he was confronted with allegations of sexual harassment — had been motivated by an attempt to save his job. The sexual harassment allegations, which Khan has denied, are currently the subject of an external investigation.
But there is no evidence that yesterday’s ruling is anything other than a proper exercise of the appellate function. The pre-trial chamber’s decision was clearly perfunctory. As I wrote in November, after deliberating for six months and considering more than 100 written submissions the chamber came up with just eight operative paragraphs.
Although nothing less than cancelling the warrants and withdrawing the charges will satisfy the Israeli government and its supporters, the Jerusalem Post sees the ruling as a victory for Dr Gilad Noam, Israel’s deputy attorney general for international law, who persuaded Netanyahu that it was worth mounting a series of legal challenges to the court’s rulings.
If nothing more, it puts the prosecutor on the defensive and allows the pre-trial chamber time to think again.
Thanks for covering this development 👏🏻