Appealing ICC arrest warrants, Israel says court violated its own charter and rulings
Court said in 2021 it would rule first on jurisdiction issues before issuing any warrants against Israelis, but last month asserted Israel had no standing to challenge jurisdiction
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Israel filed two appeals on Friday against the decision of the International Criminal Court (ICC) to issue arrest warrants for Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.
The appeals, filed by Dr. Gilad Noam from the Attorney General’s Office, focused on what Israel argued were serious procedural deficiencies in the decision by ICC Prosecutor Karim Khan to seek arrest warrants for Netanyahu and Gallant.
The first appeal addressed Israel’s contention that Khan should have provided new notification of his investigation into the allegations regarding the prosecution of the war in Gaza following Hamas’s October 7 invasion and massacre. He instead relied on notification issued in 2021 of an investigation the court had initiated at the time.
The second appeal dealt with Israel’s claim that the ICC lacks jurisdiction over Israelis.
The ICC issued arrest warrants for Netanyahu and Gallant on November 21 on charges of war crimes and crimes against humanity over the war in Gaza.
The allegations related in particular to charges that the two leaders had committed the war crimes of directing attacks against the civilian population of Gaza and of using starvation as a method of warfare by hindering the supply of international aid to Gaza.
Khan also alleged that the two committed the crimes against humanity of murder, persecution and other inhumane acts as a result of the restrictions they allegedly placed on the flow of humanitarian aid to Gaza.
Israel has strongly rejected the substance of the allegations, insisting that it has funneled massive amounts of humanitarian aid through the crossings along the Gaza border, and that any problems with the distribution of that aid to the Palestinian civilian population are a result of inefficient operations by the aid organizations on the ground, difficulties arising from the ongoing conflict in the territory, and the looting of aid by Hamas and other terrorist organizations.
Israel has also rejected allegations that it targets civilians, insisting that civilian casualties caused by the operation have resulted in large part due to Hamas’s tactic of embedding its fighters and installations within Gaza’s civilian infrastructure.
In its appeal over the issue of notification, Israel noted that the ICC’s Pre-Trial Chamber I — which approved Khan’s request for arrest warrants — noted that the court had “tacitly accepted” that an investigation “could change to such a degree” that new notification would be required.
Notification is a crucial component of the Rome Statute under which the ICC operates, since it is designed to give the country under investigation the ability to conduct its own investigations into the charges alleged by the prosecutor and have its own justice system deal with the allegations, a principle known as “complementarity.”
Israel alleges that Khan never gave Israel this opportunity and therefore violated this foundational principle of the court designed to restrain its jurisdiction in cases where the country under investigation has an independent legal system and judiciary.
In its decision to approve the arrest warrants, the ICC found that the threshold of a change in the investigation had not been met, but Israel in its appeal argued that the allegations under investigation in 2021 and those now under investigation as a result of the current war are significantly different, and that Khan should therefore have issued new notification before deciding to seek arrest warrants.
In the second appeal, Israel appealed the court’s ruling that Israel does not have standing to appeal its jurisdiction, and that even if it did it could not do so until after warrants have been issued.
“The court’s legitimacy depends, in equal measure, both on the effective discharge of its mandate, and on adherence to its jurisdictional limitations,” Israel insisted in its appeal.
Israel argued that the court had ignored the ICC’s earlier decision from 2021 when it admitted “the State of Palestine.” At that time, the court decided that it would rule on “further questions of jurisdiction” only if and when the prosecutor filed requests for arrest warrants against Israelis.
Israel argued in its initial challenges against Khan’s request for arrest warrants that the terms of the Oslo Accords signed by Israel and Palestinian representative bodies explicitly deny any Palestinian entity legal jurisdiction over Israeli nationals.
Since the ICC works by party members delegating their jurisdiction to the court to prosecute suspected violations of the Rome Statute, the Palestinians never had the necessary jurisdiction to transfer to the ICC in the first place, Israel argued.
But the court rejected Israel’s standing to challenge the ICC’s jurisdiction at all.
Israel noted in its appeal that the 2021 decision admitting “the State of Palestine” to the court “expressly did not deal with” the arguments surrounding the provisions of the Oslo Accords and stipulated that such questions would be decided if and when arrest warrants would be sought.
As a result, the ICC’s decision to reject Israel’s standing to challenge jurisdiction meant that Israel was being “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.”
