In a potential historic comeback, the Appeals Chamber of the International Criminal Court on Thursday reversed the November 2024 ruling of the ICC lower court against Israel’s jurisdictional objections to the issuing of arrest warrants for alleged war crimes against Prime Minister Benjamin Netanyahu and then-defense minister Yoav Gallant.
The ruling is Israel’s first big win before the ICC since a win it obtained in 2012, and this after a string of losses in 2019, 2021, and November 2024 in which the war crimes proceedings against Israel continued to proceed from initial stages to interim stages, threatening to getting to even later stages, such as indictments.
The decision sends the jurisdictional fight back to the ICC lower court to more fully explore Israel’s jurisdictional objections to the arrest warrants and the ICC’s intervention into Israel’s conduct of the current Gaza war more generally.
Until the ICC lower court holds additional hearings on the issue, which could easily take a few months, and maybe even much longer, the whole case against Israel will be frozen.
The arrest warrants against Netanyahu and Gallant technically have not been frozen, but given that the lower court could decide to cancel them after hearing Israel’s full jurisdictional objections, many countries that are members of the ICC may now feel more free to ignore the arrest warrants until a final ruling is reached.
According to the ICC Appeals Court, “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 ICC lower court had said that the arrests could go forward even if there was no final determination on Israel’s jurisdictional objections, as these objections could be dealt with at the indictment stage or some other later stage.
In contrast, the ICC Appeals Court said that leaving Israel’s objections to ICC jurisdiction until later was unlawful.
On the merits of the appeal, the Appeals Chamber concluded that the Pre-Trial Chamber committed an error of law by failing to sufficiently address Israel’s argument that it was entitled to make a jurisdictional challenge under article 19(2)(c) of the statute.
In light of the above, the Appeals Chamber dismissed, as moot, Israel’s request for suspensive effect of two arrest warrants issued after the impugned decision and “any other legal acts taken by the Court based thereon.”
In addition, the ICC Appeals Court Chamber, by a majority vote, dismissed Israel’s second grounds for appeal against the ICC lower court, rejecting Israel’s request for an order to the prosecutor to issue a new notice under article 18(1) of the statute.
A majority voted that the appeal was inadmissible
The Appeals Chamber, by 3-2 majority, with Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, found the appeal to be inadmissible, considering that the Pre-Trial Chamber’s decision was not a decision with respect to admissibility pursuant to article 82(1)(a) of the statute.
The Appeals Chamber deciding on these two appeals is composed of Judge Tomoko Akane, presiding, Judge Luz del Carmen Ibáñez Carranza, Judge Solomy Balungi Bossa, Judge Gocha Lordkipanidze, and Judge Erdenebalsuren Damdin.
The November 2024 landmark ruling against Israel was viewed by the Jewish state as its most devastating legal loss in history, with tremendous diplomatic, public relations, and economic repercussions as well.
However, Israel has been fighting since then to get the ICC lower court decision overturned to make more arguments against ICC jurisdiction.
Some jurisdictional arguments relate to the idea that there is no state of Palestine to give jurisdiction to the ICC, to the idea that the Oslo Accords preclude the Palestinians from seeking ICC involvement, as well as the idea that Israel’s own mechanisms for probing alleged war crimes by its soldiers make the ICC’s involvement redundant.
Just this week, the IDF came out with two investigations admitting fault for killing international officials in separate incidents, and already punishing some senior officers, some of whom could potentially also face Israeli criminal charges.
More broadly, the IDF Legal Division has around 90 open criminal probes against IDF soldiers for potential war crimes, and the IDF’s Operational Fact-Finding Mechanism has around 350 highly active probes, and well over 1,000 more preliminary probes into the war.
The Office of Prosecutor Karim Khan told The Jerusalem Post that his office “is studying the judgment of the Appeals Chamber, and for now has no comment.”
Foreign Minister Gideon Sa’ar responded to 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 defense. 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,” said Sa’ar.
The Post understands that the interim win before the ICC Appeals Court would only have been possible given a major policy shift achieved by Deputy Attorney-General for International Affairs Gilad Noam, who along with others, had a leading role to convince the Israeli political level to officially intervene and file legal briefs in two separate rounds before the ICC after years of formally ignoring the judicial body.
One round was against the court’s prosecutor, trying to get the lower court to approve arrests against Netanyahu and Gallant.
A second round was to appeal to the ICC Appeals Court over the lower court’s November 2024 decision in favor of the prosecutor.
This was not a simple convincing, especially since Noam himself is no naïve ideologue, but absolutely a realist about the bias that Israel can expect to be up against in some of these international forums.
Netanyahu, like most at the political level, is on the extreme end of skepticism regarding the merit of engaging with international forums that have shown a long history of anti-Israel bias.
He has often publicly asked why give such bodies even the half-legitimacy they might gain when Israel decides to show up and treat them as if they are a potentially fair and unbiased court.
Israel has mostly boycotted the UN Human Rights Council for years and has only spoken to ICC officials on an informal basis, never formally joining any of the court’s proceedings.
Israel maintains that the ICC lacks jurisdiction because it says the UN Security Council has not recognized “Palestine” as a state, due to provisions of the Oslo Accords, along with other arguments.
And yet, Noam and other lawyers, the Post has learned, convinced the political level that even if there might only be a remote chance of convincing its lower court to drop its prosecutor’s arrest warrant request, this was worth the risk.
Likewise, Noam and the legal establishment convinced Netanyahu and the political level that the same low probability of winning was still worth trying to appeal to the ICC’s highest judicial body to overturn its lower court.
In fact, the ICC Appeals Court had previously overturned the lower court for being too aggressive about allowing the pursuit of certain other cases, so there was always some glimmer of hope.
The fact that Noam and the legal establishment were able to move Israel along this path, in spite of the very public intense acrimony over many domestic political issues between the prime minister and Noam’s boss, Attorney-General Gali Baharav-Miara, is another testament to the seriousness with which Noam and the government’s lawyers are regarded by the political echelon.