ICC Bar Association President Karim Khan moderating the Closing Panel at the ICTY Legacy Symposium. December 19, 2017 (Photo by: Raoul Somers).
Israel formally announced the filing of official appeals against the International Criminal Court’s (ICC) decision to issue arrest warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant.
The appeals were filed by the Attorney General’s Office on Friday, claiming procedural problems in the decision to issue arrest warrants, including a lack of jurisdiction.
Both Israel and the United States have rejected the validity of the ICC arrest warrants, especially as neither country is a member of the Rome Statute which established the ICC’s jurisdiction over member states.
However, the Israeli government decided to appeal the arrest warrants after several member states, including several European nations, said they would uphold the arrest warrants.
In the first appeal, Israel argued that the ICC prosecutor was required to notify it “with a new or revised article 18(1) notification when the ‘defining parameters’ of its investigation changed, as they did after 7 October 2023.”
Israel contends that ICC Prosecutor Karim Khan was obligated under ICC regulations to provide advance notification about a new investigation into allegations of war crimes due to the outbreak of the Gaza War, which erupted following Hamas’ invasion and massacres on Oct. 7 of last year. Israel argued that these events and the subsequent military campaign constituted a new “situation of crisis,” rendering the original “defining parameters” of the 2021 investigation irrelevant. As a result, a notification of a new investigation was required – something Khan failed to provide.
The appeal states that “instead of providing Israel with an article 18(1) notification that reflects the scope of the investigation by which Israel’s own accountability efforts would be judged, the Prosecutor abruptly announced arrest warrants against the Prime Minister and Minister of Defense, based on an investigation that took the same amount of time as was required by his Office to issue arrest warrants against Hamas’s murderous leadership. This reflected disregard for the fundamental principle of complementarity, and indifference to the existence of a functioning democracy with independent legal institutions committed to the rule of law.”
Notification of the intent to investigate is a key part of the Rome Statute, designed to provide an opportunity for the country under investigation to conduct its own investigation of the alleged crimes.
Secondly, Israel maintains that the ICC lacks jurisdiction. It stated that jurisdiction “plays a critical role in defining judicial competence in order to prevent abuse of the judicial process and guarantees that courts do not exceed the carefully defined mandates entrusted to them.”
“The legitimacy of the Court depends in equal measure on the effective discharge of its mandate, and on adherence to its jurisdictional limitations,” the Israeli appeal stated.
Israel challenged the court’s jurisdiction over the Palestinian Territories, based on the Rome Statute’s own defining articles.
“The absence of sovereign Palestinian territory means that there is no ‘territory of’ a State (within the meaning of Article 12(2)(a)) over which the Court may exercise its jurisdiction,” it claimed.
If the court were to claim jurisdiction over the Palestinian Territories, Israel argued, that “would require it to act in contravention of binding Israeli-Palestinian agreements that expressly leave such matters to direct negotiation between the Parties, and to make determinations that are wholly unsuitable for an international criminal tribunal.”
Israel also stated that the ICC has no jurisdiction over Israeli officials, as a non-member of the Rome Statute, and as a functioning democratic country with an independent judiciary.
Last month, the court ruled that Israel lacked standing to challenge the ICC’s jurisdiction. In its appeal, Israel said this ruling meant it was “wrongfully deprived of standing for its jurisdiction challenge and also led to the wrongful issuance of arrest warrants against Israel’s prime minister and former defense minister.”
The outcome of the Israeli appeal remains uncertain, as the ICC Appeals Court is unlikely to overturn the lower court’s decision, particularly given the prevalent anti-Israel bias often observed in UN-affiliated bodies like the ICC.
