Editor’s Note: This article is part of our ongoing symposium on the ICC and the Israel-Hamas war.
Q-1: What happened with the Prosecutor’s request for arrest warrants in the ‘Situation in Palestine’ at the International Criminal Court (ICC)?
A: Yesterday, the ICC’s Pre-Trial Chamber I issued three warrants: one for Israeli Prime Minister Benjamin Netanyahu, one for former Israeli Defense Minister Yoav Gallant, and one for Mohammed Diab Ibrahim Al-Masri (commonly known as “Deif”), the leader of Hamas’s military wing. Deif is presumed dead, but, unlike Ismail Haniyeh and Yahya Sinwar, for whom the Prosecutor had also requested warrants, his death has not yet been confirmed.
The warrants were issued under a “secret” classification to protect witnesses and safeguard investigations. However, the Pre-Trial Chamber issued press releases with key information regarding the contents of the warrants for two reasons.
First, as specified in the press releases, conduct “similar to that addressed” in the warrants “appears to be ongoing.” Hostage-taking and starvation of civilians as a method of warfare are both at least allegedly continuing crimes. Publicizing the existence of warrants for ongoing conduct may be particularly important in concretizing for all individuals not already included in the warrants that they face legal exposure by participating in or contributing to that continuing conduct. Second, the Chamber deemed it to be “in the interest of victims and their families” to be made aware of the existence of the warrants.
Q-2: What are the key allegations in the arrest warrants and for what crimes are Netanyahu and Gallant’s arrests sought?
A. The information released by the Pre-Trial Chamber includes a summary of the crimes for which the individuals’ arrests are sought. (As identified below, however, there are conspicuous gaps between the Prosecutor’s request and the press release description of the Pre-Trial Chamber’s issuance of warrants.)
Specifically, the arrests of Netanyahu and Gallant are sought for the following crimes.
- As co-perpetrators:
- The war crime of starvation of civilians as a method of warfare (here through impeding humanitarian relief in violation of international humanitarian law and in a way that intentionally and knowingly deprived the civilian population in Gaza of food, water, medicine, and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024);
- The crime against humanity of murder (here through the aforementioned deprivation creating “conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration”);
- The crime against humanity of inhumane acts (here in the form of inflicting great suffering through the deprivation of medical supplies and medicines);
- The crime against humanity of persecution—the discriminatory deprivation (here on national or political grounds) of fundamental rights (here the rights to life and health).
- As civilian superiors, responsible for their subordinates:
- The war crime of directing attacks at a civilian population.
The key allegation made by the Prosecutor in relation to Netanyahu and Gallant that is not included in the arrest warrant is that of extermination (a crime against humanity). The warrants also appear to omit the Prosecutor’s allegations relating to the war crimes of wilfully killing and wilfully inflicting great suffering or serious injury to body or health, although this may well be an imprecision in the press release. More on these points below.
Deif’s arrest is sought for:
- The war crime of hostage-taking (starting on October 7th, when a “large number of persons” were seized from various locations in Israel, including Kfar Aza, Holit, Nir Oz, Be’eri, Nahal Oz, and the Supernova festival, and continuing into Gaza, where they were detained in secret locations; the press release notes that “a number of hostages” appear still to be held captive);
- In relation to the attacks of October 7th:
- The war crime of directing attacks at a civilian population (here through attackers firing at people with semi-automatic weapons and/or rocket-propelled grenades, particularly at the site of the Supernova festival and in its vicinity);
- Murder as a war crime and as a crime against humanity (here through mass killings at or around the communities of Kfar Aza, Holit, Nir Oz, Be’eri, and Nahal Oz, as well as at the Supernova festival);
- The crime against humanity of extermination (through the same mass killings that underpin the murder allegation, which were found to be coordinated across locations);
- In relation to sexual and gender-based violence inflicted on certain hostages in Gaza (“predominantly women”):
- Torture and cruel treatment, as war crimes and crimes against humanity;
- Rape and sexual violence, as war crimes and crimes against humanity;
- The war crime of outrages upon personal dignity.
In addition to the name and identifying information of each individual and the crimes for which their arrest is sought, each warrant will have included a concise statement of the facts that underpin those criminal allegations (ICC Statute, article 58(3)(c)). On this, the press releases included only limited details. From those details, it is notable that the Pre-Trial Chamber approved warrants for Netanyahu and Gallant in relation to two specific direct attacks on civilian populations, without specifying which attacks those were. The press release associated with the Prosecutor’s request for warrants in May referred to “attacks on civilians, including those queuing for food; obstruction of aid delivery by humanitarian agencies; and attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza.” However, we do not know which two attacks meeting this description the Chamber found to be supported by sufficient evidence to ground that component of the warrants for Netanyahu and Gallant. Among the most high-profile events that might have been included in this category are the so-called “flour massacre” of Feb. 29, when at least 112 people were killed and 760 injured, and the attack on a World Central Kitchen convoy that killed seven aid workers on April 1. Importantly, the theory of the case here is not that Netanyahu or Gallant ordered these attacks. Rather, it is that they criminally failed “to prevent or repress” the commission of these crimes.
Q-3: What more can you discern about alleged crimes in the ICC Prosecutor’s applications for the arrest of Netanyahu and Gallant that were not included in the arrest warrants?
A: On the exclusion of extermination from the Netanyahu and Gallant warrants, we have only limited information. Extermination is a crime of mass murder. Notably, the Prosecutor’s description of the initial request included murder and extermination in the alternative (listing “extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a)” in relation to Netanyahu and Gallant, in contrast to listing the extermination and murder allegations separately in relation to Sinwar, Deif, and Haniyeh). This hinted even then that the Office of the Prosecutor was aware that the “massiveness” component of extermination could prove to be an evidentiary stumbling block.
This may seem dissonant with the scale of killing in Gaza, but the Prosecutor’s extermination and murder allegations were focused exclusively on “deaths … resulting from or associated with the systematic deprivation of objects indispensable to the survival of Palestinian civilians in Gaza.” Indeed, the Prosecutor noted explicitly at the time of the request that his office was still investigating crimes “in relation to the large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza.” This distinction matters because it can be difficult to prove cause of death via mass deprivation, due to the stretched temporal context and multiple intervening factors between that deprivation and fatality (see, for example, here p.146). That challenge is multiplied when it is necessary to prove death on a massive scale, as is required to establish the crime of extermination.
On this point, it is worth noting that the Pre-Trial Chamber was presented with evidence up to May 20. As I wrote recently, events since then have likely strengthened the evidence supporting the extermination allegation. The Office of the Prosecutor may well seek to have extermination added to the warrants for Netanyahu and Gallant.
The apparent exclusion from the Netanyahu and Gallant warrants of the war crimes of wilfully killing and inflicting great suffering or serious injury to body or health is harder to explain, not least because the Chamber says nothing at all about this issue in its press release. Their exclusion cannot have been due to insufficient evidence, given that crimes against humanity involving similar conduct (murder and inhumane acts via the infliction of great suffering) were found to be established to the requisite standard. The only additional element of the war crime (as distinct from the related crimes against humanity) would be a nexus to the armed conflict or belligerent occupation, which is clear-cut in this case. Indeed, that nexus is a key element underpinning the allegation of starvation of civilians as a method of warfare, which is predicated on many of the same acts. Given this, and recognizing that ICC press releases are generally not written by the judges and are not legal documents, the lack of coverage of these war crimes is most likely an imprecision in the press release, rather than an omission in the underlying arrest warrants.
Q-4: What happens next at the ICC?
A: In terms of next steps at the ICC, three points warrant particular emphasis. First, the Pre-Trial Chamber will determine when to instruct the Registry to prepare and communicate a request for arrest and surrender to relevant states and international organizations. Second, further litigation is likely to occur even in the absence of arrests. This could include prosecutorial requests for amendment to the warrants or prosecutorial appeals regarding crimes excluded from the warrants, as well as challenges to the admissibility of the case or the jurisdiction of the Court by Israel, Netanyahu, Gallant, or (conceivably) Deif, if the latter is in fact alive. Third, the Prosecutor will continue to proceed with gathering evidence and building the case.
One of the most significant next steps will be for the Pre-Trial Chamber to instruct the Registry to prepare and communicate a request for arrest. This can either be a request for provisional arrest where urgency demands it (ICC Statute, article 92), or a full request for arrest and surrender (article 91).
In the former case, the request for provisional arrest would include a statement that a full request for surrender of the person sought will follow (article 92(2)(d)). A request for provisional arrest would include information regarding the existence of the warrant, a concise statement of the crimes for which arrest is sought, and identifying information regarding the person sought (article 92(2)) – all information that has already been made public in the press releases.
In contrast, a request for arrest and surrender would include the full arrest warrant in addition to documents, statements, or information necessary to meet the requirements for the surrender process in the requested state (article 91(2)(b-c)). Although the warrants are currently secret, a sealed warrant can be communicated to a state or international organization for the purposes of its execution. Additionally, the Court may reclassify the warrants whenever the basis for their classification no longer exists. This could occur pursuant to an application by the Prosecutor or on the Court’s own motion (Regulations of the ICC, regulation 23bis(3)). In this case, given the implications for witness safety and investigative integrity, the Court may invite the Prosecution and the Victims and Witnesses Unit to submit observations on the possible unsealing. If not earlier, Pre-Trial Chambers ordinarily decide to make warrants public (with necessary redactions) as soon as the person sought is surrendered to the Court.
Regarding further litigation, there are avenues for the Prosecutor, the individuals whose arrest is sought, and states with jurisdiction–notably Israel–to litigate various aspects relating to the current arrest warrants. In particular, as explained below, the Prosecutor may seek to amend the contents of the warrants or appeal the exclusion of extermination from the warrants for Netanyahu and Gallant. Israel and any of the individuals whose arrest is sought may seek to challenge the admissibility of the relevant case or, it seems from the Pre-Trial Chamber’s analysis, the jurisdiction of the Court (ICC Statute, article 19(2)). It is likely that at least some of those actors will avail themselves of those avenues.
Regarding admissibility, the most significant test is that of complementarity. A case would be inadmissible if a state of jurisdiction is actively engaged in (or has completed) genuine criminal investigations and, where appropriate, prosecutions in relation to the persons sought by the ICC and regarding substantially the same conduct alleged in the arrest warrants (see Kevin Jon Heller’s excellent overview). As the Prosecutor emphasized yesterday, “In line with the Rome Statute, the door to complementarity continues to remain open. As with all situations, we will continue to actively assess the application of this fundamental principle, which requires genuine domestic investigations and any necessary prosecution of the same individuals for substantially the same conduct.”
On the issue of evidence gathering, it is important to note that the evidentiary threshold that needed to be satisfied for the Pre-Trial Chamber to issue the warrants was that there were “reasonable grounds to believe” the individuals in question committed the crimes in question (ICC Statute, article 58(1)(a)). Following an arrest, in order to have the charges confirmed, the Prosecutor will next have to establish that the allegations are supported by “substantial grounds to believe” that the individuals perpetrated the crimes (article 61(5, 7)). That would set the stage for a trial, where the evidentiary standard would again elevate, this time to “beyond reasonable doubt” (article 66(3)).
In other words, although we do not know how much evidence the Prosecutor has already collected (and it is notable that he has indicated that his Office proceeds with an arrest warrant request when the evidence gathered is sufficient for a “realistic prospect of conviction”), it is possible that the Prosecutor will want to seek significant additional evidence, including evidence relating to activity since the initial request. Following the issuance of the warrants, the Prosecutor emphasized that his office will “continue to seek cooperation from all stakeholders including the State of Israel and the State of Palestine to ensure my Office fully meets its responsibility pursuant to article 54 of the Rome Statute to investigate incriminating and exonerating circumstances equally.”
Q-5: What are the legal implications for ICC State Parties?
A: The most obvious and important implication for States Parties is that when the person sought is found on their territory, they must “comply with requests for arrest and surrender,” pursuant to appropriate procedural safeguards (ICC Statute, article 89(1)). This is a specific manifestation of their general obligation to “cooperate fully with the Court in its investigation and prosecution” of crimes within its jurisdiction (article 86). This obligation is relatively straightforward in relation to Deif and Gallant.
Benjamin Netanyahu, on the other hand, is Israel’s sitting head of government. For the duration of his term in office, he is generally shielded from arrest in other states by his immunity ratione personae (also termed a “personal” or “status” immunity). States Parties waive that immunity through their ratification of the Rome Statute (article 27), but Israel is not an ICC State Party. Numerous states declined to arrest former Sudanese President Omar al-Bashir during his period as Head of State on the ground that Sudan, as a non-party, had not waived his immunity and he was therefore shielded from arrest in foreign jurisdictions (for Court decisions on these refusals, see here). In so doing, they invoked article 98 of the Statute, which provides, “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”
However, following key jurisprudence on status immunities from the International Court of Justice (para. 61) and other courts, such as the Special Court for Sierra Leone, the ICC Appeals Chamber ultimately determined that al-Bashir’s immunity did not apply before the ICC because it is an international court. Moreover, it determined that this meant that such immunities were also inapplicable in shielding heads of state or head of government from arrest by ICC States Parties when the latter are acting pursuant to ICC arrest warrants.
This is also the basis for the Court’s determination that States Parties have an obligation to arrest Vladimir Putin. Pre-Trial Chamber II recently ruled that Mongolia failed to discharge this obligation during Putin’s visit to the country beginning on September 2nd of this year. In this and other respects, yesterday’s warrants will test the consistency of states on key issues of international criminal law. Some of those who have been most critical of the arrest warrant for Netanyahu celebrated and affirmed the Court’s warrant for Putin.
In addition to their obligation to arrest and surrender, States Parties also have a broader obligation to cooperate with the Court’s “investigation and prosecution of crimes” within its jurisdiction (ICC Statute, article 86), including through forms of cooperation enumerated in article 93, many of which involve specific investigative and evidence-gathering functions, as well as those relating to the protection of witnesses and victims. Given information regarding certain States Parties’ access to relevant evidence, these obligations are potentially highly significant.
[Editor’s note: See also, Rebecca Ingber, Mapping State Reactions to the ICC Warrants for Netanyahu and Gallant]
Q-6: What are the practical implications for the defendants? How likely are arrests? Will the living defendants still be able to travel, etc.?
A: Deif is most likely dead, so his warrant is very likely moot. Once the Pre-Trial Chamber receives confirmation of his death, it will terminate proceedings against him. Given the very high likelihood of that outcome, it may be tempting to think that the issuance of an arrest warrant for Deif was simply to provide balance, given that he was the only remaining member of Hamas for whom a warrant had been sought. However, the Court terminates proceedings only upon confirmation of death. Similarly, the Office of the Prosecutor withdrew the requests for warrants for Haniyeh and Sinwar only after it received confirmation of their deaths. There is nothing out of the ordinary about the Court proceeding with the case against Deif under current conditions.
If, contrary to expectations, Deif is in fact alive, perhaps the most significant implication is that Palestine, as a State Party to the ICC Statute, would have an obligation to arrest and surrender him to the Court. In the immediate term, of course, the Palestinian Authority has no ability to arrest Deif. However, if Deif is alive, the warrant would add an additional layer of complication to the dynamic between the Palestinian Authority and Hamas in any post-conflict settlement that would involve the Palestinian Authority returning to the Gaza Strip. Given that Hamas members are already limited in their ability to travel, the fact of the ICC warrant is unlikely to change much on that front for Deif.
As an aside: It should also be noted that the Prosecutor stated, back in May when he announced the requests for arrest warrants, “My Office will not hesitate to submit further applications for warrants of arrest.” He might seek, or have already sought, warrants for other individuals, and that process may occur under seal.
For Netanyahu and Gallant the impact is highly significant. The warrants will change how they can engage with the world. The 124 States Parties to the ICC system now have an obligation to arrest each man should he travel to their territory. Many of those parties to the ICC are states with good relations with Israel. In short, the world of both Netanyahu and Gallant has shrunk considerably and their risk of arrest has escalated.
For the same reason, Vladimir Putin was ultimately unable to travel to the BRICS Summit hosted by South Africa in 2023. The latter is an ICC State Party. In the build-up to the Summit, it was clear that Putin wanted to attend, and it appeared that South Africa did not want to arrest him. As explained by Max du Plessis and Andreas Coutsoudis,
“In the face of repeated refusals by the South African government openly to accept that it would comply with its obligations to arrest President Putin, in May 2023, the Democratic Alliance (the DA), the official parliamentary opposition, launched an urgent application in the Pretoria High Court (the Putin matter). In that application, the DA sought declaratory and interdictory relief: asking the High Court to confirm South Africa’s obligation to arrest President Putin, and ensuring that the necessary steps were taken to domesticate and execute the ICC arrest warrant.”
The litigation played a key role in South Africa’s domestication of the warrant. Putin did not travel to the BRICS Summit.
With one caveat, this change to the capacity of Netanyahu and Gallant to engage with the broader world is essentially permanent and unyielding – there are no statutes of limitations (ICC Statute, article 29) or amnesties for these crimes. Unless they prevail legally before the ICC, Netanyahu and Gallant will live for the rest of their days as international fugitives, with most countries in the world off-limits for them in perpetuity. The one caveat to this is that, pursuant to a resolution adopted under Chapter VII of the UN Charter, the Security Council can defer proceedings at the ICC for one year at a time, with the possibility of renewal (ICC Statute, article 16). Any of the permanent five members could veto such a resolution, which would need to be supported by nine affirmative votes from the fifteen members of the Council.
The warrants also have the potential to provide the focal point for political and legal mobilization in third states, making it harder for some states to sustain military aid to Israel (and Hamas). As part of their general duty to “ensure respect” for international humanitarian law (IHL), states must refrain from military support to other states or groups whenever there is an “expectation” of IHL violations and must act with due diligence to “prevent violations when there is a foreseeable risk that they will be committed” (ICRC Commentary to GC I, paras. 162, 164). States that are party to the Arms Trade Treaty (ATT)—including, for example, Germany and the United Kingdom—must cease their supply of arms if such support “could facilitate” serious violations of IHL or human rights law and, despite mitigating measures, an “overriding risk” of such violation remains (ATT, article 7).
With three independent ICC judges having affirmed the ICC prosecutor’s request in relation to multiple serious violations of IHL and crimes against humanity, the basis for both legal and political mobilization against the continued transfer of arms to Israel has obviously been strengthened (see here, pt. II). Additionally, as noted above, the warrants may concretize the duty not to participate or contribute for those individuals currently doing so. That could, at least in theory, limit Prime Minister Netanyahu’s ability to pursue the alleged criminal scheme effectively.
Q-7: Are there any legal implications for the United States given its special signatory status?
A: The United States signed the ICC Statute on Dec. 31, 2000. However it never ratified the ICC Statute. Ordinarily, treaty signatories have an obligation not to defeat the object and purpose of the treaty (Vienna Convention on the Law of Treaties, article 18(a)). That said, on May 6, 2002, the Bush administration “un-signed” the treaty, informing (n.12) the U.N. Secretary-General: “the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.”
This was an effort to invoke the exception regarding the obligation not to defeat the object and purpose of the treaty, namely that that obligation ceases once the state has “made its intention clear not to become a party to the treaty” (Vienna Convention on the Law of Treaties, article 18(a)).
However, regardless of one’s view regarding the implications of the US “un-signing” the ICC Statute, the United States is bound by other rules of international law, the specific application of which is at least informed by this development at the ICC. In particular, the United States is bound by the aforementioned duty to ensure respect for IHL. It is also bound by the duty to “prevent” violations of the Genocide Convention (article I), when it “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” (International Court of Justice, Bosnian Genocide, para. 431). These points are relevant here, because the unanimous issuance of war crimes arrest warrants by three judges of an independent and impartial international court, with recognition that some of those crimes appear to be “ongoing,” is itself indicative of a foreseeable risk of IHL violations.
Moreover, although genocide is not among the allegations at the ICC, it is notable that, according to the press release, the Pre-Trial Chamber “found that there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza.” This conspicuously tracks one of the underlying acts of genocide (Genocide Convention, article II(c)). Of course, for genocide to be established, this underlying act would need to be combined with genocidal intent. However, that an independent court has determined there to be “reasonable grounds to believe” that the underlying act is occurring must be incorporated into any evaluation of the seriousness of risk that would trigger preventive duties under the Genocide Convention.
Furthermore, the United States is party to the four Geneva Conventions and has codified their grave breaches into its domestic war crimes code. Jurisdiction relating to such offenses attaches whenever an alleged perpetrator is “present in” the United States (18 USC § 2441(b)(2)(B)). Indeed, under Geneva Convention IV (the relevant treaty in this case), the United States would have an obligation to “bring such persons, regardless of their nationality, before its own courts” or “hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘prima facie ‘ case” (Geneva Convention IV, article 146). As noted above, two of the Prosecutor’s allegations omitted from yesterday’s press release are wilful killing and wilfully causing great suffering, or serious injury to body or health as grave breaches of the Geneva Conventions. These are codified as war crimes in 18 USC § 2441(c)(1). Even assuming the United States rejects the full application of Geneva Convention IV to the conflict in Gaza, instead deeming this a non-international armed conflict, the same facts underpin the Prosecutor’s alternative allegations of cruel treatment and murder as serious violations of Common Article 3, which also qualify as war crimes in US law under 18 USC § 2441(d)(B, D). Assuming that the omission of these war crimes from the press release is indeed an imprecision, rather than a substantive omission, the Court’s determination that there are reasonable grounds to believe that Netanyahu and Gallant have perpetrated these war crimes would imply that Netanyahu and Gallant are persons who ought to be brought before U.S. courts to face such allegations, should they enter the United States. The ICC’s determination on this is not binding on the United States, but the underlying IHL obligations are.
Q-8: Is there a path for appealing the warrants? What does that look like and how likely is it to happen? Would the defendants need to appear in person to appeal?
A: The Prosecutor could request the Pre-Trial Chamber to amend the arrest warrants by presenting evidence in relation to allegations not included in the arrest warrants as they currently exist (ICC Statute, article 58(6)). Assuming new evidence has been gathered in the period since the initial warrant request, such an amendment could potentially include extermination (the sole requested crime clearly excluded from the Netanyahu and Gallant warrants). Where there is a legal issue relating to the issuance of the warrant, the Prosecutor could apply for leave to appeal that aspect of the warrant (article 82(1)(d)). This was done previously in relation to the arrest warrant for Omar al-Bashir, where the Prosecutor successfully challenged the omission of genocide from the initial warrant on the ground that the Court had used an incorrect evidentiary standard, leading to the issuance of a new warrant including genocide.
The person for whom arrest is sought may challenge the jurisdiction or admissibility of the case against them pursuant to article 19(2)(a). Importantly, such a challenge does not require the presence of the individual. Initially, that challenge would go to the Pre-Trial Chamber. However, it would be subject to appeal (article 82(1)(a)). Saif Gaddafi, for example, has challenged the admissibility of the case against him and taken that challenge to the Appeals Chamber, without ever having appeared in person before the ICC.
Q-9: What does it mean that the Pre-Trial Chamber said Israel could contest jurisdiction at a later stage? How does that work given the Pre-Trial Chamber suggested it was bound by its earlier ruling on jurisdiction (invoking res judicata)?
A: As I read the Pre-Trial Chamber’s decision, the Chamber sought to separate two distinct, albeit interrelated issues here: the source of Israel’s standing and the question of ICC jurisdiction.
The Court invoked res judicata on the question of whether Israel has the specific standing of a “State from which acceptance of jurisdiction is required under article 12” (ICC Statute, article 19(2)(c)). If Palestine qualifies as a State Party (as a differently composed Pre-Trial Chamber I found it did in 2021), then Israel’s acceptance of jurisdiction would not be “required” under article 12 in relation to any activity with respect to which Palestine’s acceptance of jurisdiction would be sufficient.
Of course, as the Court notes, Israel claims that Palestine is not a State Party and insists that the question of whether Israel’s acceptance of jurisdiction is required must itself be subject to litigation. Specifically, Israel argued that it “would be problematic … to deny standing on the basis that a State needs to establish the merits of a jurisdictional challenge as a prerequisite to its standing to make it.” This was the basis for Israel’s claim that it needed only to make a “prima facie tenable” claim on this point to have standing under article 19(2)(c) (para. 14). It is specifically in relation to this claim that the Chamber invoked res judicata. As the Court puts it, “there is a fundamental difference between granting a State standing on the presumptive validity of its claim to have jurisdiction over a situation or a case and granting it standing on the basis of an argument – which was already ruled upon – that a particular State Party does not have jurisdiction.” (para. 15).
The second question, however, is not about whether to grant presumptive validity to Israel’s claim to be a state whose acceptance is necessary for ICC jurisdiction, but about whether the ICC actually has jurisdiction. On that point, the Court holds that Israel has standing based on the distinct ground that it is a “State which has jurisdiction over a case,” per article 19(2)(b) of the Statute (para. 16). The Pre-Trial Chamber’s reasoning appears to be that granting that does not require granting standing on the presumptive invalidity of a prior ruling of the Chamber that continues to govern. Rather, it entails recognizing Israel’s clear standing to litigate under article 19(2)(b) and affirming that jurisdiction is one of the issues that can be litigated in that context, including on appeal.
The distinction could have been articulated more clearly, particularly since the two questions raise overlapping substantive issues. Nonetheless, ultimately it appears that the Chamber does not consider the question of jurisdiction to be res judicata for the purposes of a challenge under article 19(2)(b), following the issuance of an arrest warrant (para. 18). It is worth noting that the Pre-Trial Chamber’s 2021 decision, which recognized the Court’s territorial jurisdiction in Palestine, emphasized that “the Chamber’s conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation” and affirmed that if a State or “submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.” (para. 131) (emphasis added). The one point of uncertainty here is whether the reference to “further” questions limits the grounds on which jurisdiction may be challenged.
Separately, it is worth noting that Israel’s standing to contest jurisdiction under article 19(2)(b) is not straightforward, as one can read the provision to allow challenges based only on admissibility. However, the Pre-Trial Chamber seems to indicate that a party whose standing is predicated on 19(2)(b) can “challenge the Court’s jurisdiction in relation to a particular case.” (2024 decision, para. 18). The reason Israel was not positioned to do that yet is that a “case” exists only “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.” (para. 17) That has now happened. As such, Israel now has standing under article 19(2)(b) to raise an admissibility challenge “on the ground that it is investigating or prosecuting the case or has investigated or prosecuted” the case, or, as the Pre-Trial Chamber seems to indicate, on questions regarding “the Court’s jurisdiction.”