The PTC Decisions on Israel’s Legal Challenges to the Arrest Warrants

As pretty much everyone in the world knows by now, the ICC’s Pre-Trial Chamber (PTC) has issued arrest warrants for Benjamin Netanyahu and Yoav Gallant for war crimes and crimes against humanity committed in the Palestine situation. (It issued one for Mohammed Diab Ibrahim Al-Masri — Deif — as well.) Like the Office of the Prosecutor’s applications, the PTC’s decision to grant on the warrants is confidential. So the press release linked to above and the public statement the Prosecutor made when he submitted the applications are currently the only publicly available sources of information about the warrants.

That said, the PTC did publicly release two decisions rejecting legal challenges to the arrest warrants that Israel filed earlier this year — one that focused on Art. 18 of the Rome Statute, and one that focused on Art. 19. Both decisions provide useful insight into how the judges viewed the applications, so I thought it might be useful to provide readers with a post explaining the two decisions. Hence this post.

Art. 18 Challenge

In the first challenge, filed on September 20, Israel asked the Pre-Trial Chamber to order the OTP, “pursuant to article 18(1) of the Statute of the International Criminal Court, to notify Israel of any investigation that it is now conducting, or intends to conduct, into events in and around Gaza from 7 October 2023 onwards” (para. 1). Israel acknowledged that the OTP provided it with an Art. 18 notification on 9 March 2021, after Fatou Bensouda formally opened the Palestine investigation. But it argued (1) that the original notification was not adequately specific (para. 9), and (2) that even if it was adequately specific, a new Art. 18 notification was required in light of the OTP’s post-October 7 investigation. With regard to the second and more important argument, here is what Israel wrote (para. 2):

The Prosecution was required to provide Israel with a new or revised article 18(1) notification when the “defining parameters” of its investigation changed, as they did after 7 October 2023. The extent of the change following 7 October 2023 is reflected in two new referrals submitted by seven States that have invoked the court’s jurisdiction for the first time in respect of new crimes, new circumstances, and new potential perpetrators – a new “situation of crisis”. Whether a new situation has arisen, or the “defining parameters” of the Prosecution’s investigation within the existing situation have changed, the result is the same: a new article 18(1) notification had to be given to Israel to allow it to exercise its procedural rights under article 18(2) to “inform the Court” that it is investigating these acts.

Had the PTC agreed with either contention, the OTP would have needed to issue a new Art. 18 notification. Israel would then have had 30 days to inform the OTP that it was pursuing its own investigations of Netanyahu and Gallant. If it did, the OTP would have been required to suspend its investigation until it was able to convince the PTC that Israel’s efforts were not sufficient to satisfy complementarity. That process would have delayed issuance of the warrants by months.

The PTC, however, unanimously rejected Israel’s challenge. It began by rejecting the claim that the 2021 Art. 18 notification was inadequate (para. 11):

Based on the material before it, the Chamber considers that the Prosecution complied with its statutory obligations when it provided Israel and other States with the Notification. As explained by the Appeals Chamber, a notification under article 18(1) of the Statute ‘shall contain information “relevant for the purposes of article 18 paragraph 2” of the Statute’, namely: the general parameters of the situation and sufficient detail with respect to the groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, that the Prosecution intends to investigate. The Chamber specifically notes that the Notification included the types of alleged crimes, potential alleged perpetrators, the starting point of the relevant timeframe, as well as a reference to further relevant information, including the summary of the Prosecution’s preliminary examination findings. Therefore, the Notification was sufficiently specific.

The PTC then noted that, in 2021, Israel failed to ask the OTP to defer its Palestine investigation within the 30-day window provided by Art. 18(2) — and did not ask even though the OTP actually sent Israel a letter prior to the end of the 30-day window specifically asking whether it wanted to invoke Art. 18 (para. 11). The PTC also pointed out that although Israel did send the OTP a letter on 1 May 2024 formally requesting deferral of the Palestine investigation, that letter came three years after the 30-day window expired (para, 12). Israel’s request was thus invalid, because “[t]he purpose of Article 18(2) proceedings is to allow for complementarity-related admissibility challenges to be brought at the initial stage of the investigation and not at a point in time when the investigation has substantially advanced. Where a State is given the opportunity to assert its right to exercise jurisdiction, but it has declined, failed or neglected to do so, the investigation may proceed” (para. 14).

Finally — and most importantly — the PTC rejected Israel’s argument that the post-October 7 investigation was a “new situation” that required the OTP to provide Israel with a new Art. 18 notification. In the PTC’s view, the current investigation is not so substantially different from the investigation initiated by Prosecutor Bensouda in 2021 that a new notification is required (para. 15):

The Chamber notes that the Notification indicated that the investigation concerned alleged crimes in the context of an international armed conflict, Israel’s alleged conduct in the context of an occupation, and a non-international armed conflict between Hamas and Israel. In the applications for warrants of arrest, as also explained by the Prosecutor in his public statement at the time of filing the applications, the Prosecution alleges conduct committed in the context of the same type of armed conflicts, concerning the same territories, with the same alleged parties to these conflicts.Therefore, no substantial change has occurred to the parameters of the investigation into the situation.

In reaching that conclusion, the PTC noted — citing to the Appeals Chamber’s decision in the Afghanistan situation — that “Israel’s position would effectively mean that the Prosecution’s investigation in every situation would be limited to the incidents and crimes addressed during the preliminary examination and described in the article 18 notification. Such interpretation has already been rejected by the Appeals Chamber.”

The PTC then ended its analysis by pointing out that Israel still has the right to challenge the admissibility of the cases against Netanyahu and Gallant via the proper procedural avenues. “Indeed, article 19(2)(b) of the Statute allows ‘a State which has jurisdiction over a case’ to challenge the admissibility of such a case, ‘on the ground that it is investigating or prosecuting or has investigated or prosecuted’ the case itself” (para. 16).

Art. 19 Challenge

Two days after filing its Art. 18 challenge, Israel asked the Pre-Trial Chamber pursuant to Art. 19 to dismiss the applications for arrest warrants for Netanyahu and Gallant on the ground that the Court lacks jurisdiction over crimes committed in Palestine by Israeli nationals. Israel’s argument — which echoed the one offered by a number of states, organisations, and individuals during the July amicus process — consisted of three interrelated claims: (1) Palestine is not a sovereign state, so the ICC cannot exercise territorial jurisdiction over crimes committed on Palestinian territory; (2) any exercise of jurisdiction over crimes committed on Palestinian territory must therefore be based on the jurisdictional provisions in the Oslo Accords; and (3) under the Oslo Accords, Palestinian authorities have no jurisdiction over Israeli nationals concerning crimes allegedly committed on the territory identified in the arrest-warrant applications.

Here are the relevant paragraphs from the Introduction to Israel’s request (paras. 7 and 8):

The sovereign status of the territory relevant to the “Situation in Palestine” is, at present, indeterminate. 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. To determine otherwise necessarily entails a judicial pronouncement as to sovereignty over the territory, with respect to which there are competing legal claims. Any delimitation by the Court of the territory concerned 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.

In these unique circumstances, when sovereignty remains indeterminate pending final status negotiations, it is the Oslo Accords that establish the jurisdictional competences over the territory between the Parties in the interim period. These agreements make clear that the Palestinian authorities have no criminal jurisdiction either in law or in fact over Area C, Jerusalem and Israeli nationals – and thus cannot validly delegate such jurisdiction to the Court. Suggestions that the Palestinian authorities have plenary jurisdiction that exceeds the competences that were specifically ascribed to them in the Israeli-Palestinian bilateral agreements, are without legal foundation.

The PTC unanimously dismissed Israel’s challenge on the ground that it was premature. As it pointed out, a state cannot use Art. 19 to challenge the jurisdiction of the Court until after an arrest warrant or summons for a particular suspect has been issued (para. 17):

States are not entitled under the Statute to challenge jurisdiction of the Court on the basis of Article 19 prior to the issuance of a warrant of arrest or a summons…. The wording of article 19(2)(b) of the Statute makes it clear that States may only challenge the Court’s jurisdiction in relation to a particular case, i.e. after the relevant Pre-Trial Chamber ruled that there are reasonable grounds to believe that a person has committed a crime within the jurisdiction of the Court and issued a warrant of arrest or a summons to ensure the person’s appearance before the Court.

Similar to what it said in its Art. 18 decision, the PTC emphasised (para. 18) that “Israel will have the full opportunity to challenge the Court’s jurisdiction and/or admissibility of any particular case if and when the Chamber issues any arrest warrants or summonses against its nationals.” The arrest warrants have been issued, so Israel is now free to re-file its jurisdictional and admissibility challenges.