Israel Denies ICC’s Jurisdiction, Accuses Prosecutor of Ignoring Its Independent Investigations

Photo Credit: Vincent van Zeijst, The Global Panorama / Flickr

International Criminal Court Building

The State of Israel submitted two documents to the Appeals Chamber of the International Criminal Court in The Hague on Wednesday in response to the arrest warrants issued against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. Netanyahu decided at the last possible minute to notify the court of Israel’s decision to file the appeal.

In the first, 14-page-long document, Israel rejects the argument of the pre-trial panel that issued the arrest warrants on its jurisdiction in discussing matters related to Israel (below is the introduction):

Pre-Trial Chamber I, on the same day that it issued arrest warrants against the Prime Minister and former Minister of Defense of Israel, rejected – based on procedural grounds – Israel’s challenge to the jurisdiction of the Court pursuant to Article 19(2)(c) of the ICC Statute.

As part of that challenge, Israel had requested that the Court determine that the Prosecutor’s article 58 “application concerning Mr. Netanyahu and Mr. Gallant, and any investigative action on the same jurisdictional basis, are not within the Court’s jurisdiction.”

Despite the critical importance of the Court adhering to its jurisdictional limitations when issuing arrest warrants, the Pre-Trial Chamber dismissed, without substantive scrutiny, Israel’s serious objections to the Court’s lack of jurisdiction with respect to the Palestine Situation. Rather, the Pre-Trial Chamber held that:

(i) Israel does not have standing to file a jurisdictional challenge pursuant to Article 19(2)(c) at all;
(ii) States do not have standing to file a jurisdictional challenge pursuant to Article 19(2) prior to the issuance of arrest warrants.

The issuance of the Impugned Decision and the arrest warrants on the same day also deprived Israel of any opportunity to appeal this decision prior to the issuance
of arrest warrants against its democratically elected officials.

Against this background, Israel urgently files this notice of appeal against the decision of Pre-Trial Chamber I rejecting Israel’s challenge to the jurisdiction of the Court pursuant to Article 19(2) of the ICC Statute. This rejection of Israel’s standing to bring a jurisdictional challenge means that a drastic step – the issuance of arrest warrants – has taken place without any judicial consideration of Israel’s submissions on jurisdiction.

The refusal to substantively consider these submissions is particularly egregious considering that, simultaneously, the Trial Chamber made an ex parte determination, as it was required to do pursuant to Article 19(1) of the Statute, that it had jurisdiction to issue the arrest warrants.

The Impugned Decision’s significance cannot be overstated. The Court’s Article 19(1) obligation to “satisfy itself that it has jurisdiction in any case brought before it” and the ability of States to bring challenges to the jurisdiction of the Court under Article 19(2) are not mere formalities. Jurisdiction plays a critical role in defining judicial competence in order to prevent abuse of the judicial process and guarantee that courts do not exceed the carefully defined mandates entrusted to them, including when issuing arrest warrants. The Court’s legitimacy depends, in equal measure, both on the effective discharge of its mandate and on adherence to its jurisdictional limitations. The latter is further safeguarded by sovereign States, including those that are not party to the ICC Statute, being permitted to exercise their rights to challenge the Court’s jurisdiction.

In the second, 13-page-long document, Israel rejects the court’s arguments regarding the refusal to allow the investigation to be returned to Israel:

Israel has never received notice of the scope of the Prosecution’s intended investigations into the events arising from Hamas’s unprecedented and cataclysmic attack on Israel starting on the morning of October 7, 2023. Notice of such investigations is required, pursuant to Article 18(1) of the Rome Statute, to provide States – including States that are not party to the Rome Statute and which dispute the Court’s jurisdiction – with the opportunity of showing that they are exercising their own jurisdiction in respect of the alleged criminality. This is not a technical rule: it is the “central premise of the Court’s exercise of jurisdiction.”

“No State should have to face,” as the Appeals Chamber has stated, the “serious reproach” of not acting “without at least being given an opportunity to explain itself.”

Instead of promptly providing such a notice following October 7 when its investigations were just starting, the Prosecution purported to rely on a notice as to the scope of its intended investigations into the Palestine situation in March 2021. The Prosecution refused to provide Israel with a new Article 18(1) notice, even though circumstances required a new investigation, from scratch, into the wholly new and unprecedented events, and involving allegations of fundamentally different types of criminality committed in radically different circumstances.

The March 2021 notice did not provide, and could not have provided that notice. Nevertheless, the Pre-Trial Chamber – on the same day that it issued arrest warrants derived from that post-October 7 investigations – has now affirmed that deeply flawed approach.

Israel hereby provides notice of its intent to appeal the Impugned Decision, which declines to require the Prosecution to provide Israel with notice, pursuant to its obligation under article 18(1) of the Statute, of the parameters of its post-October 7 investigations. This failure has deprived Israel of the opportunity to show that its own domestic investigations sufficiently mirror those of the Prosecution which, in turn, would require it to defer its investigations, subject to potential judicial
review.