The Appeals Chamber Decides Israel’s Appeals — And Refuses to Suspend the Arrest Warrants

Introduction

On 27 November 2024, Israel appealed two decisions of the Pre-Trial Chamber that were issued simultaneously with the arrest warrants for Benjamin Netanyahu and Yoav Gallant. The first decision rejected Israel’s claim that it was entitled to a new Art. 18 notification because the OTP’s s investigation after October 7 was substantially different than the investigation the OTP opened in 2021. The second decision rejected Israel’s claim that it was entitled to challenge the jurisdiction of the Court even before arrest warrants had been issued for an Israeli suspect.

The Appeals Chamber resolved the appeals earlier today. One appeal is a clear loss for Israel. The other is a partial win that, in practice, means very little. Most important of all, the Appeals Chamber refused Israel’s request to suspend the two arrest warrants — which means that they are still valid and binding on all of the states that are party to the Rome Statute.

The Article 18 Decision

The Appeals Chamber dismissed Israel’s appeal of the Art. 18 decision on the ground that the decision was not appealable under Art. 82(1)(a) of the Rome Statute. Art. 82(1)(a) provides, in relevant part, that “[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence… (a) A decision with respect to jurisdiction or admissibility.” Israel claimed that the decision concerned admissibility because the Pre-Trial Chamber rejected Israel’s request for a new Art. 18 notification. A majority of the Appeals Chamber, however, disagreed (para. 33):

The Pre-Trial Chamber concluded that, in the absence of a “new situation” or “an investigation with new defining parameters”, the Prosecutor was under no obligation to provide a new notification to the relevant States pursuant to article 18(1) of the Statute, and as such, to provide a new one-month timeline for States to request deferral upon receipt of the notification. In the view of the majority of the Appeals Chamber, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, when making the aforementioned findings, the Pre-Trial Chamber did not rule on the admissibility of any potential case under article 18 of the Statute. In addition, the majority of the Appeals Chamber, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, notes that the operative part of the Impugned Decision does not pertain directly to a question on the admissibility of any potential case.

Put more simply: only a decision about the admissibility of a specific case involving a specific suspect justifies a direct appeal to the Appeals Chamber under Art. 82(1)(a). A decision about Art. 18 is not such a decision — Art. 18 concerns an investigation as a whole. An Art. 18 decision is thus not directly appealable  to the Appeals Chamber.

Despite losing this appeal, Israel may still be able to appeal the Art. 18 issue. When Israel filed its direct appeal to the Appeals Chamber under Art. 82(1)(a), it also asked the Pre-Trial Chamber to grant it leave to appeal the Art. 18 issue under Art. 82(1)(d). If the Pre-Trial Chamber grants leave — it earlier said it would wait for the Appeals Chamber’s decision on the direct appeal — the Appeals Chamber will have the opportunity to consider whether the OTP should have issued a new Art. 18 notification.

I think it is unlikely that the Pre-Trial Chamber will do so. I don’t want to get into the weeds concerning when a Pre-Trial Chamber will grant leave to appeal one of its own decisions. Suffice it to say here that the Art. 18 decision is a poor candidate. Because arrest warrants have already been issued for Netanyahu and Gallant, the Art. 18 issue is moot even if the Pre-Trial Chamber was wrong not to order the OTP to issue a new notification. (Which it wasn’t, for reasons ably explained by Alexandre Skander Galand at Just Security.) Art. 18 applies at the beginning of an investigation, before the OTP has identified individual suspects. That is when a state is entitled to ask the OTP to defer its investigation on the ground — to quote Art. 18(2) — “that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States.” Once a specific suspect has been identified and an arrest warrant has been issued, complementarity is governed by Art. 17, not Art. 18: the question is whether the state is investigating the same suspect for substantially the same conduct, not whether it is generally investigating the kinds of cases that might arise from the situation.

Differently put, Israel no longer has to file a general complementarity challenge in the Palestine situation because it already knows that the OTP intends to specifically prosecute Netanyahu and Gallant for the war crimes and crimes against humanity listed in the arrest warrant. If Israel doesn’t want those prosecutions to move forward, all it has to do is conduct genuine investigations of them for substantially the same conduct.

The Article 19 Judgment  

The Article 19 Judgment is highly technical and not easy to explain. The basic issue in the appeal was whether Israel was entitled to challenge the jurisdiction of the Court prior to the Pre-Trial Chamber issuing an arrest warrant for an Israeli suspect. The relevant provision in the Rome Statute concerning jurisdictional challenges is Art. 19(2):

Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by:

(a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58;

(b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or

(c) A State from which acceptance of jurisdiction is required under article 12.

Israel invoked Art. 19(2)(c), arguing that it is a “State from which acceptance of jurisdiction is required under article 12” because Palestine is not a state that can delegate its territorial jurisdiction to the Court. The Pre-Trial Chamber did not pay much attention to Israel’s Art. 19(2)(c) argument, because it concluded that states, like suspects, cannot challenge the Court’s jurisdiction prior to an arrest warrant being issued — which had not yet happened when Israel filed its jurisdictional challenge.

On appeal, the Appeals Chamber addressed two issues. The first was the same as the one in the Article 18 Decision: whether the Pre-Trial Chamber’s dismissal of Israel’s jurisdictional challenge was directly appealable under Art. 81(2)(a). The Appeals Chamber unanimously agreed that it was (para. 35):

In the case at hand, as noted above, the Pre-Trial Chamber declined to address the jurisdictional challenge on the basis of its interpretation of a number of legal questions related to articles 12 and 19 of the Statute. These considerations underpinned the Pre-Trial Chambers ultimate conclusion, as also set out in the operative part of the Impugned Decision, that the jurisdictional challenge was submitted prematurely. Accordingly, the Appeals Chamber concludes that, by virtue of the finding that the jurisdictional challenge was premature, the Impugned Decision amounts to a decision that consists of or is based on a ruling on the jurisdiction of the Court. As a result, the Appeals Chamber finds that the appeal is admissible under article 82(1)(a) of the Statute.

The second issue, according to the Appeals Chamber, was whether “the Pre-Trial Chamber erred in law by failing to sufficiently address Israel’s argument that it has standing to submit a jurisdictional challenge pursuant to article 19(2)(c) of the Statute.” The Appeals Chamber unanimously held that the Pre-Trial Chamber had erred in a way that materially affected its decision:

60. The Pre-Trial Chamber went on to find that Israel has standing “under article 19(2)(b) juncto article 12(2)(b) of the Statute if the Chamber decides to issue any warrants of arrest for Israeli nationals”, although “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”. Nevertheless, 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 PreTrial 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.

62. 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.

Having concluded that the Pre-Trial Chamber had erred in a way that materially affected its decision, the Appeals Chamber ended its analysis by considering what relief Israel was entitled to. Importantly, the Appeals Chamber rejected Israel’s argument that the arrest warrants for Netanyahu and Gallant should be suspended until the Pre-Trial Chamber addressed the jurisdictional issues, holding (para. 66) that the Pre-Trial Chamber’s decision to issue the warrants was not “inextricably connected” to its error concerning Art. 19(2)(c). That being the case, it would have made little sense to ask the Pre-Trial Chamber to determine whether Israel was entitled to challenge the Court’s jurisdiction before the issuance of an arrest warrant — that issue was moot because the arrest warrants had already been issued. The Appeals Chamber thus simply instructed the Pre-Trial Chamber to consider the substance of Israel’s jurisdictional challenge, not its timing (para. 64):

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. The Appeals Chamber notes that it is for the Pre-Trial Chamber to determine the applicable legal basis under article 19(2) of the Statute for addressing Israel’s jurisdictional challenge at the present stage of the proceedings, and to provide any required further instructions on the procedure to be followed.

The Appeals Chamber’s remand is a pyrrhic victory for Israel. To begin with, the judgment does not explicitly rule out the Pre-Trial Chamber addressing Israel’s Art. 19(2)(c) argument more thoroughly and concluding that the provision doesn’t give Israel the right to challenge jurisdiction. (Which it doesn’t, for reasons explained in the OTP’s reply to Israel’s Art. 19 appeal.) That would mean Netanyahu and Gallant would have to challenge jurisdiction themselves pursuant to Art. 19(2)(a), because the plain language of Art. 19(2)(b) limits a state to bringing an admissibility challenge. (Although the Pre-Trial Chamber oddly suggested when it rejected Israel’s Art. 19 appeal that Israel could also challenge jurisdiction under that provision.)

Even if the Pre-Trial Chamber interprets the Article 19 Judgment to require it to directly address jurisdiction, Israel has gained very little. The Pre-Trial Chamber was always going to consider that issue at some point because of Art. 19(2)(a). It is difficult to imagine neither Netanyahu or Gallant invoking that provision if Israel can’t bring a jurisdictional challenge itself. So even in the “strong” reading of the judgment, all the Appeals Chamber has done is order the Pre-Trial Chamber to do what it would have eventually done anyway.

One other aspect of the Article 19 Judgment is worth noting. In 2021, a differently constituted Pre-Trial Chamber held that the Court has jurisdiction over Israeli nationals who commit international crimes on the territory of Palestine because Palestine is a party to the Rome Statute. When the current Pre-Trial Chamber rejected Israel’s jurisdictional challenge, it said that it considered the 2021 Decision to be res judicata. The Appeals Chamber held that the Pre-Trial Chamber did not adequately explain why that was the case (para. 59):

In view of the particularities of the preceding stages of the proceedings in the Situation in Palestine, the Pre-Trial Chamber should have more specifically addressed the applicability of the notion of res judicata. The reason is that the Pre-Trial Chamber was previously seized of a question pertaining to the jurisdiction of the Court pursuant to article 19(3) of the Statute in the context of proceedings to which Israel, despite an invitation to provide observations, was not a party. This is even more so in view of the fact that, in the Article 19(3) Decision, the Pre-Trial Chamber specifically held that issues pertaining to the impact of the Oslo Agreements on the Court’s jurisdiction “may be raised by interested States based on article 19” at a later stage. In the Impugned Decision, the Pre-Trial Chamber nonetheless omitted to address why, in light of these particular circumstances, the notion of res judicata prevented Israel from making a challenge under article 19(2)(c) of the Statute.

This is also a “win” for Israel — but it is unlikely to be a meaningful one. The Appeals Chamber’s judgment does not require the Pre-Trial Chamber to reject the previous Pre-Trial Chamber’s decision affirming the Court’s jurisdiction over Israeli nationals. All the judgment does is imply that, when it considers Israel’s jurisdictional challenge on remand, the Pre-Trial Chamber cannot treat the earlier decision as res judicata.

Conclusion

The Appeals Chamber’s Article 18 Decision and Article 19 Judgment will have almost no effect on the Palestine investigation. Israel did not file the appeals because it thought the Pre-Trial Chamber was trampling on complementarity or because it was worried it would not be able to  challenge the Court’s jurisdiction. Israel has had the right to challenge the admissibility of the cases against Netanyahu and Gallant since the moment the warrants were issued. And Netanyahu and Gallant have had the right to challenge the Court’s jurisdiction from that same moment. What Israel really wanted was for the Appeals Chamber to suspend the arrest warrants against Netanyahu and Gallant. And on that it failed.  The arrest warrants are still valid and the obligation to enforce them is still binding.