The objection of the International Criminal Court Prosecutor Karim Khan to Israel’s appeal of the war crimes arrest warrants issued against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant was announced on Tuesday.
The arrest warrants constitute the darkest legal crisis Israel has ever encountered and have led to diplomatic bouts between Israel and other states, including several countries being more aggressive about seeking to arrest Israeli soldiers, even though the ICC itself has not gone after soldiers yet.
On November 21, the ICC Pre-Trial Chamber, or lower court, approved the warrants, and in mid-December, Israel appealed to the ICC Appeals Court, the institution’s top court, to reverse the decision.
Israel’s appeal rested mainly on Articles 18 and 19 of the Rome Statute, raising both directly and indirectly a plethora of errors it said the lower court had committed in its decision.
Some of the issues raised by Israel relate to whether Palestine is a country, whether Israel’s legal establishment properly probes itself, whether Israel needed to be given more specifics by Khan about any investigation after October 7 radically changed the region, and whether a head of state from a democratic country like Netanyahu has a special immunity.
In the bigger picture, the ICC Appeals Court will also be weighing whether it wants to continue to drive forward against Israel at a moment when the war may be ending and when incoming US president Donald Trump is sure to make the ICC pay for hassling the Jewish state. The ICC lower court ruled against Israel, already knowing that Trump was elected (and that the US does not provide any funding to the ICC), so if the Appeals Court ruled differently, it might also reflect a different understanding of the relevant geopolitics.
Even beyond the US, the response by ICC member states has been mixed, with some like Hungary, Poland, France, and Germany signaling that they would not arrest Netanyahu were he to visit in his diplomatic capacity.
One way the ICC Appeals Court could sidestep the issue and reduce tensions without turning tail would be to send the issue back to the ICC lower court for a redo—to more seriously analyze some of Israel’s objections, which seemed to be overlooked in the initial decision.
Such a move would not give victory to either the ICC Prosecutor or Israel but could remove the issue from the news.
Israel had told the lower ICC court that Khan had not properly informed it of the status of the investigation against it, especially regarding the latest warrants of arrest.
Khan said multiple formal notices had been given over the years and he had issued several very public statements during the current war,, which extended the notice to cover the current war and not only previous conflicts with Gaza in 2014, 2018, and 2021.
In its appeal, Israel said that the current war had fundamentally changed the circumstances in the region. Regarding any potential charges, Israel said that a new and more specific notice of investigations into the current war was required to allow Jerusalem to respond before a decision was made.
Also, Israel 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
The ICC Prosecutor responded on Monday, though the appeal was only announced and accessible on Tuesday, that the ICC 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 Israel had, at least in court filings, ignored the legal proceedings for years.
The ICC Prosecutor did not, and nor did the ICC lower court, address with much specificity Israel’s narrative and defenses to the charge of starvation.
Regarding complementarity or the idea that Israel’s probes of itself render any ICC involvement superfluous because the ICC can only get involved if a country does not investigate its own citizens, Khan wrote that this is the wrong time for Israel to raise the issue. Rather, he said Israel could have raised the issue much earlier in the investigation, before the arrest warrants were applied for, or it could have raised the issue much later, at trial.
Previously, Khan has noted that Israel 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 Spring 2024.)
Another issue that Israel raised on appeal and that other supporters of Israel raised was Netanyahu’s status as head of state, which gives him some immunity.
The ICC Prosecutor’s objection stated that heads of state have no immunity, but even if the ICC Appeals Court granted immunity to Netanyahu in this specific case, it would not protect Gallant, who is no longer in government.
Yet another issue Jerusalem raised on appeal was the idea that the lower ICC court had failed to fully and independently analyze whether a “State of Palestine” exists, which can even be the source of the current case and arrest.
The ICC lower court said on November 21, and the IDF Prosecutor, in its objection, seconded that a prior ruling in 2021 had declared Palestine a state after over a year of debate and receiving dozens of briefs from countries around the world.
Given that extensive briefing, they argued that the 2021 ruling was binding and that there was no need to re-analyze the issue.
However, Israel had noted that the 2021 ruling was pretrial and, as such, was not a “final judgment.”
This meant Israel argued that the ICC lower court needed to re-analyze the issue before issuing arrest warrants, which it did not do.
The ICC Prosecutor said that the court only needs to look into the issue of whether Palestine is a state again during an actual trial, not merely to issue arrests.
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