International Criminal Court (ICC) Chief Prosecutor Karim Khan objected on Tuesday to Israel’s appeal of the war crimes arrest warrants that were issued against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.
The warrants constitute the darkest legal crisis Israel has ever encountered and have led to diplomatic bouts between Israel and other states, some of which have been more aggressive in seeking to arrest IDF soldiers than others – although the ICC itself has not gone after soldiers just yet.
On November 21, the ICC’s Pre-Trial Chamber, a lower court, approved the warrants.
A few weeks later, in mid-December, Israel appealed to its Appeals Chamber – the institution’s top court – to reverse the decision.
The appeal rested mainly on Articles 18 and 19 of the Rome Statute, which established the court and to which Israel and the US are not signatories – raising, both directly and indirectly, a plethora of errors it said the lower court committed in its decision.
Some of the issues relate to whether Palestine is a country, whether Israel’s legal establishment properly investigates itself, whether Israel needed to be given more specifics by Khan about any probe after October 7, which radically changed the region, and whether a head of state from a democratic country, like Netanyahu, has special immunity.
The ICC Appeals Chamber will weigh whether it wants to continue its drive against Israel at a moment when the war may be ending and when US President-elect Donald Trump is sure to make the ICC pay for hassling the Jewish state.
Notably, the lower court ruled against Israel after Trump’s election win was announced.
The US does not provide any funding to the ICC, so if the Appeals Chamber rules differently, this might also reflect a different understanding of the relevant geopolitics.
The responses by ICC member states have been mixed. Some, like Hungary, Poland, France, and Germany, signaled that they would not arrest Netanyahu were he to visit in his diplomatic capacity.
ONE WAY in which the Appeals Chamber could sidestep the issue and reduce tensions without turning tail would be to send the issue back to an ICC’s lower court for a redo to more seriously analyze some of Israel’s objections, which seemed to get short shrift in the initial decision.
Such a move would not give victory to either Khan or Israel, but it could take the issue out of the news.
Israel had told the lower court that Khan hadn’t given it proper formal notice of the status of the investigation against it, especially as it could pertain to the latest arrest warrants.
Khan said that several formal notices had been given over the years and that he issued several public statements during the current war, which expanded those notices to cover it as well, and not just the previous conflicts with Gaza in 2014, 2018, and 2021.
In its appeal, Israel said that the current war represented a fundamental change in the circumstances in the region.
Any potential charges would require a new, more specific notice of investigations into the current war to allow Jerusalem time to respond before a decision would be made.
Israel further said that the crime of “starvation” of Palestinians, which Jerusalem rejects, was not part of any prior probe until 2024 and required a new formal notice from Khan.
Within the ICC
Khan responded on Monday – though the appeal was only announced and accessible on Tuesday.
He said that the rules about giving notice to a party were flexible and that the changed circumstances of October 7 did not give Israel the right for additional notice after it had – at least in court filings – ignored the legal proceedings for years.
Neither the prosecutor nor the lower court addressed with much specificity Israel’s narrative and its defenses to the charge of starvation.
Complementarity is the principle that a country’s independent probes into itself render any ICC involvement superfluous. The court can only get involved if a country does not investigate its own citizens thoroughly.
Regarding this, Khan wrote that now is the wrong time for Israel to raise this issue. Rather, he said, it could have been raised at a much earlier date in the investigation and before the arrest warrants had been applied for. Another option would have been a much later date, at trial.
KHAN HAD previously noted that the Jewish state is only probing its soldiers and has refrained from a state inquiry into the legality of government decisions (which Israeli government lawyers have been urging the government to do since the spring.)
Another issue that Israel raised on appeal, and which supporters have raised as well, was whether Netanyahu’s status as head of state gives him immunity.
Khan’s objection was that heads of state have no immunity, but that even if the Appeals Chamber were to grant immunity to Netanyahu in this specific case, it would not protect Gallant, who is not even in the government anymore.
Another issue Israel raised on appeal was the idea that the lower ICC court failed to fully and independently analyze whether a “State of Palestine” exists, which could be problematic as it may be the source power of the current case and warrants.
The lower court said on November 21 that a prior lower court ruling in 2021 declared Palestine a state after over a year of debate and receiving dozens of briefs from countries worldwide.
Given that extensive briefing, they argued that the 2021 ruling was binding and that it was unnecessary to reanalyze the issue.
However, Israel had said that the 2021 ruling was set in a pretrial and, as such, was not a “final judgment.”
This means Israel argued that the lower court needed to reanalyze the issue before issuing arrest warrants, which it did not do.
The ICC’s prosecutor responded to this by saying that the court only needed to reexamine the issue of whether Palestine is a state during an actual trial – not merely when issuing arrest warrants.