Examining the ICC Appeals Chamber Decision on Victim Participation in the Palestine Article 18(1) Appeal: Significance and Implications

[Avi Singh is a Senior Advocate at the High Court of Delhi. Nalinaksha Singh is an Advocate]

Introduction 

A recent decision highlights a persistent tension within the ICC’s victim participation framework: whether Article 68(3) functions as a genuine procedural guarantee or remains dependent on narrow readings of statutory silence. On 21 November 2024, Pre-Trial Chamber I of the International Criminal Court (ICC) issued its decision rejecting Israel’s request for the Prosecutor to issue a new notice under Article 18(1) of the Rome Statute, finding that the developments after 7 October 2023 did not amount to a new situation or a substantial change in the parameters of the ongoing investigation. On 14 May 2025, the Chamber granted Israel leave to appeal that limited issue. After the parties completed their written submissions, three sets of legal representatives of victims filed two requests on 17 and 22 July 2025 seeking permission to submit observations in the appeal (“Requests”), and Israel filed a consolidated response on 25 July 2025 opposing both requests (“Response”).

Article 68(3) of the Rome Statute permits victims to present their views and concerns where their personal interests are affected, and rule 85(a) defines a victim as a natural person who has suffered harm as a result of a Rome Statute crime. Relying on these provisions, the Requests argued that the victims represented meet rule 85(a), have previously participated in the Palestine Situation, that victim participation is contemplated in proceedings relating to Article 18, and that the appeal directly affects their interests. The Second Request also noted that its team had already been authorised to make submissions in the Situation. Israel opposed both Requests on the basis that they were untimely, that no victims have previously participated in Article 18 proceedings, and that the modalities sought fell outside ordinary practice.

Majority Decision 

The Appeals Chamber, by majority, rejected the Requests. It noted first that neither the Rome Statute nor the ICC Rules expressly provide for victim participation in proceedings relating to Article 18(1), and that rule 92(1) excludes notification obligations for proceedings under Part 2 of the Statute, which includes Article 18. The Majority also underscored that victims have not previously participated in any Article 18 proceedings and had not taken part in the proceedings leading to the Impugned Decision. It further observed that both Requests were filed only after the completion of the parties’ briefing, and considered that granting leave at this stage would disrupt the established schedule. The Majority therefore concluded that victim participation was not appropriate in the present circumstances, while noting that this did not preclude participation at a later stage if deemed appropriate.

Dissenting Opinion

In their joint dissenting opinion, Judges Ibáñez Carranza and Bossa set out a broader rights-based understanding of victim participation grounded in Article 21(3). They emphasised that the Court must interpret its legal framework consistently with internationally recognised human rights and, in cases of ambiguity, apply the pro homine principle, which requires reading provisions in the manner that best protects individuals. On this basis, they considered that Article 68(3) confers both substantive and procedural rights on victims that extend to all stages of the proceedings, including the appellate stage, and reflect the international human rights guarantees of access to justice and an effective remedy. While Article 18 does not expressly envisage victim participation, the dissent stressed that it does not prohibit it either, and that the Court cannot draw distinctions where the Statute itself does not. They therefore rejected the Majority’s position that participation depends on involvement in the first instance, noting that Article 68(3) contains no such requirement. They further argued that the Appeals Chamber should consider whether the outcome of the appeal affects the victims’ personal interests, which in this case it clearly does given the potential impact on the continuation and scope of the investigation. The dissent also rejected the timeliness objection, observing that the Statute and Rules impose no deadline for such requests and that the Chamber cannot create one. Finally, they noted that receiving observations would be in the interests of the Appeals Chamber, as it would assist in determining whether the developments after 7 October 2023 amounted to a substantial change. In support of this broader approach, the dissent recalled that the Appeals Chamber had already authorised victim participation in proceedings related to Article 18(2) in the situations in the Republic of the Philippines and in Venezuela, demonstrating that victim involvement at the situation stage is both feasible and consistent with the Court’s jurisprudence.

Analysis

The Rome Statute conceives justice for victims as multidimensional– retributive, reparative, and procedural, and victim participation is central to this structure. This design reflects broader developments in domestic criminal systems, where victims increasingly exercise an accountability function by challenging decisions not to prosecute. At the ICC, however, victims remain significantly constrained in their ability to scrutinise prosecutorial decision-making at the preliminary stage, particularly in relation to decisions not to open or continue investigations. Proceedings under Article 18 are precisely where such oversight could be most meaningful, yet the Majority’s approach effectively forecloses this role by treating participation as exceptional unless expressly stated, in stark contrast to the dissenting opinion which recognises the colour of human rights law in interpreting the statute.

Viewed through Article 21(3), this narrow approach is difficult to sustain. The Appeals Chamber has repeatedly emphasised that human rights “underpin the Statute; every aspect of it,” and Trial Chambers in Lubanga and Ntaganda have drawn extensively on international human rights law in defining victims’ rights and reparations principles. Human rights norms demand that victims, recognised as rights-holders, be consulted on decisions that directly affect them. As scholars and judges (including Judge Ibáñez Carranza) have noted, access to justice is not merely a procedural accommodation but a substantive right that judicial institutions must guarantee. Against this backdrop, excluding victims from appellate proceedings that may determine whether an investigation continues risks rendering participation symbolic and undermines the Statute’s procedural justice commitments.

The dissent offers a more principled alternative. By interpreting Article 68(3) as a default entitlement and applying the pro homine principle, it reframes the analytical question: not whether Article 18(1) expressly permits participation, but whether there is any defensible basis to deny it where victims’ personal interests are directly affected. On this view, the Majority’s reliance on timing and lack of prior participation is insufficient, particularly given the absence of statutory deadlines and the Appeals Chamber’s prior acceptance of victim submissions in Article 18(2) appeals in the Philippines and Venezuela situations. Recognising victim participation at this stage would enhance transparency and accountability in decisions that shape the very possibility of future investigations and reparations.

The broader significance of the decision lies in the direction it signals for the Court’s participation jurisprudence. If the Majority’s restrictive reasoning prevails, victim participation at the situation stage will remain fragmented, contingent, and vulnerable to procedural happenstance. If the dissent’s rights-based approach gains traction, the Court could develop a more coherent and principled framework that reflects the Statute’s human rights foundations and allows victims to meaningfully influence early decisions that directly affect their access to justice. How the ICC resolves this tension will shape the practical and normative content of victim participation for years to come.

Conclusion

The decision highlights a fundamental divergence in the Court’s approach to victim participation at the situation stage. The Majority’s restrictive reading of Article 68(3) reinforces a procedural model that treats silence in the Statute as exclusion, whereas the dissent advances a rights-based interpretation that views victim participation as a default entitlement wherever personal interests are at stake. How this tension is resolved in future Article 18 proceedings will determine whether victim participation at the ICC remains compartmentalised and contingent or develops into a coherent, principled framework capable of accommodating victims’ accountability interests at the earliest stages of the Court’s work. In the absence of meaningful victims’ participation in the initial stages of an investigation, the prosecutor’s discretion will remain without transparency or accountability, and undermine the role of the court in pursuing justice. Paradoxically, shielding the Prosecutor from the victim increases the pressure on the Prosecution to exercise its discretion based on political considerations. Nowhere is this more true than the Palestine situation.