The Appeals Chamber of the International Criminal Court (ICC) has frozen the institution’s case against Israel in a dispute about its own jurisdiction.
In a ruling yesterday, the court reversed the decision by it’s lower chamber in November 2024 to deny Israel’s jurisdictional objections as part of a long-running investigation in alleged war crimes.
Since 2019, the court has been examining claims that both sides in the Israel-Palestine conflict have violated international law, including allegations of civilian targeting and hostage taking.
Last year, it issued arrest warrants for Israel’s Prime Minister Benjamin Netanyahu, his former Defence Minister Yoav Gallant and late Hamas commander Mohammed Deif.
Proceedings against Deif were ended with his death in an Israeli airstrike, confirmed by Hamas in January, but the warrants for Netanyahu and Gallant remain active.
At the time the warrants were issued, Israel objected to the court’s involvement, claiming that, as Israel is not an ICC member, the court can have no jurisdiction against Israeli nationals.
The ICC is only able to take action against nationals of non-member states in limited circumstances, such as a referral by the UN Security Council or the unilateral acceptance of its jurisdiction by the state in question.
Supporters of the warrants argue that Palestine can grant this unilateral jurisdiction with regard to the alleged crimes in Gaza and the West Bank. However, opponents respond that there is no recognised Palestinian state to grant this jurisdiction and that the provisions of the Oslo Accords preclude it from appealing to the ICC as a non-state actor.
The lower chamber of the court rejected Israel’s objection without ruling on its merits, arguing that it could be addressed later in proceedings and should not hinder the issuing of the warrants.
However, the upper chamber has now reversed that section of the ruling and returned the case to the justices for further hearings on the issue of jurisdiction.
In its ruling, the Appeals Chamber said: “Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Statute should not have been dismissed as premature.”
The decision concluded that the Pre-Trial Chamber has committed an error of law in refusing the challenge and that it must now be heard.
The warrants will remain active while the court deliberates, which could take several months, but the fresh proceedings could see them thrown out altogether.
Israeli Foreign Minister Gideon Saar hailed the decision, saying: “We said it from the start – The International Criminal Court in The Hague doesn’t have and never had jurisdiction to issue arrest warrants against Israel’s prime minister and its former minister of defence.
"Israel is not a member of the ICC and is not party to the Rome Statute’.
“The ICC Appeals Court instructed the Court today to do what it should have done from the start: to make a determination with respect to jurisdiction. On this topic, there is only one correct answer: the Court has no jurisdiction over Israel. The warrants were issued unlawfully. They are null and void.”
