Pix credit here
Text is meaningless, grunts and scratching (to borrow from Noam Chomsky, What Kind of Creatures Are We? (Columbia U Press, 2016)) until it is formed (terra autem erat inanis et vacua et tenebrae super faciem abyssi (Gen 1:2 (Vulgate) "the earth was void and empty"). Text remains formless, in the absence of ordering premises (spiritus Dei (Ibid)) that shapes the perception of the world and which thus shaped provides the structures within which it is possible to engage in the actualization of meaning that both affirms and realizes the premises now objectified as text.
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| Pix credit here, here, and here |
That, condensed to its essence, might be understood as the core semiotics of legal semiotics--a faith in meaning; and a meaning that performs its faith in the ordering premises of its lebenswelt. Courts and their procuratorates, function at their best as the iterative, mimetic performance of and custodian for an affirming role; a sort of phenomenology of law as faith-act. Not bad; not good, but intimately consequential--(re)producing the faith-experience of bad/good. In a sense, then, that is all one need know in order to appropriately approach the text recently performed by the apparatus of the International Criminal Court in The Hague, the Press Release and supporting decisions crafted over the signature of its officials, and flowing from the self-centering and affirming operations of the apparatus, all of which follow below (along with links to the original). To extract its premises, to distill its lebenswelt, is to begin to be able to approach its actualization in the text presented, and perhaps eventually, in its performative experiences. The impulses that drive the patterns into which all of this is woven, are universal; the application, in this case is contextually embedded--but the context is itself an object of the impulse and a manifestation of the inter-subjectivity of its patterning in this form and at this time and in this place. For a standard analysis, please look elsewhere.
Today, on 21 November 2024, Pre-Trial Chamber I of the International Criminal Court (‘Court’), in its composition for the Situation in the State of Palestine, unanimously issued two decisions rejecting challenges by the State of Israel (‘Israel’) brought under articles 18 and 19 of the Rome Statute (the ‘Statute’). It also issued warrants of arrest for Mr Benjamin Netanyahu and Mr Yoav Gallant.
Decisions on requests by the State of Israel
The Chamber ruled on two requests submitted by the Israel on 26 September 2024. In the first request, Israel challenged the Court’s jurisdiction over the Situation in the State of Palestine in general, and over Israeli nationals more specifically, on the basis of article 19(2) of the Statute. In the second request, Israel requested that the Chamber order the Prosecution to provide a new notification of the initiation of an investigation to its authorities under article 18(1) of the Statute. Israel also requested the Chamber to halt any proceedings before the Court in the relevant situation, including the consideration of the applications for warrants of arrest for Mr Benjamin Netanyahu and Mr Yoav Gallant, submitted by the Prosecution on 20 May 2024.
As to the first challenge, the Chamber noted that the acceptance by Israel of the Court’s jurisdiction is not required, as the Court can exercise its jurisdiction on the basis of territorial jurisdiction of Palestine, as determined by Pre-Trial Chamber I in a previous composition. Furthermore, the Chamber considered that pursuant to article 19(1) of the Statute, States are not entitled to challenge the Court’s jurisdiction under article 19(2) prior to the issuance of a warrant of arrest. Thus Israel’s challenge is premature. This is without prejudice to any future possible challenges to the Court’s jurisdiction and/or admissibility of any particular case.
The Chamber also rejected Israel’s request under article 18(1) of the Statute. The Chamber recalled that the Prosecution notified Israel of the initiation of an investigation in 2021. At that time, despite a clarification request by the Prosecution, Israel elected not to pursue any request for deferral of the investigation. Further, the Chamber considered that the parameters of the investigation in the situation have remained the same and, as a consequence, no new notification to the State of Israel was required. In light of this, the judges found that there was no reason to halt the consideration of the applications for warrants of arrest.
Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice
Warrants of arrest
The Chamber issued warrants of arrest for two individuals, Mr Benjamin Netanyahu and Mr Yoav Gallant, for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024, the day the Prosecution filed the applications for warrants of arrest.
The arrest warrants are classified as ‘secret’, in order to protect witnesses and to safeguard the conduct of the investigations. However, the Chamber decided to release the information below since conduct similar to that addressed in the warrant of arrest appears to be ongoing. Moreover, the Chamber considers it to be in the interest of victims and their families that they are made aware of the warrants’ existence.
At the outset, the Chamber considered that the alleged conduct of Mr Netanyahu and Mr Gallant falls within the jurisdiction of the Court. The Chamber recalled that, in a previous composition, it already decided that the Court’s jurisdiction in the situation extended to Gaza and the West Bank, including East Jerusalem. Furthermore, the Chamber declined to use its discretionary proprio motu powers to determine the admissibility of the two cases at this stage. This is without prejudice to any determination as to the jurisdiction and admissibility of the cases at a later stage.
With regard to the crimes, the Chamber found reasonable grounds to believe that Mr Netanyahu, born on 21 October 1949, Prime Minister of Israel at the time of the relevant conduct, and Mr Gallant, born on 8 November 1958, Minister of Defence of Israel at the time of the alleged conduct, each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.
The Chamber also found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.
Alleged crimes
The Chamber found reasonable grounds to believe that during the relevant time, international humanitarian law related to international armed conflict between Israel and Palestine applied. This is because they are two High Contracting Parties to the 1949 Geneva Conventions and because Israel occupies at least parts of Palestine. The Chamber also found that the law related to non-international armed conflict applied to the fighting between Israel and Hamas. The Chamber found that the alleged conduct of Mr Netanyahu and Mr Gallant concerned the activities of Israeli government bodies and the armed forces against the civilian population in Palestine, more specifically civilians in Gaza. It therefore concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory. For these reasons, with regards to war crimes, the Chamber found it appropriate to issue the arrest warrants pursuant to the law of international armed conflict. The Chamber also found that the alleged crimes against humanity were part of a widespread and systematic attack against the civilian population of Gaza.
The Chamber considered that there are reasonable grounds to believe that both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024. This finding is based on the role of Mr Netanyahu and Mr Gallant in impeding humanitarian aid in violation of international humanitarian law and their failure to facilitate relief by all means at its disposal. The Chamber found that their conduct led to the disruption of the ability of humanitarian organisations to provide food and other essential goods to the population in need in Gaza. The aforementioned restrictions together with cutting off electricity and reducing fuel supply also had a severe impact on the availability of water in Gaza and the ability of hospitals to provide medical care.
The Chamber also noted that decisions allowing or increasing humanitarian assistance into Gaza were often conditional. They were not made to fulfil Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied with goods in need. In fact, they were a response to the pressure of the international community or requests by the United States of America. In any event, the increases in humanitarian assistance were not sufficient to improve the population’s access to essential goods.
Furthermore, the Chamber found reasonable grounds to believe that no clear military need or other justification under international humanitarian law could be identified for the restrictions placed on access for humanitarian relief operations. Despite warnings and appeals made by, inter alia, the UN Security Council, UN Secretary General, States, and governmental and civil society organisations about the humanitarian situation in Gaza, only minimal humanitarian assistance was authorised. In this regard, the Chamber considered the prolonged period of deprivation and Mr Netanyahu’s statement connecting the halt in the essential goods and humanitarian aid with the goals of war.
The Chamber therefore found reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare.
The 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, which resulted in the death of civilians, including children due to malnutrition and dehydration. On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met. However, the Chamber did find that there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.
In addition, by intentionally limiting or preventing medical supplies and medicine from getting into Gaza, in particular anaesthetics and anaesthesia machines, the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment. Doctors were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics, and/or were forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering. This amounts to the crime against humanity of other inhumane acts.
The Chamber also found reasonable grounds to believe that the abovementioned conduct deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and that the population was targeted based on political and/or national grounds. It therefore found that the crime against humanity of persecution was committed.
Finally, the Chamber assessed that there are reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza. In this regard, the Chamber found that the material provided by the Prosecution only allowed it to make findings on two incidents that qualified as attacks that were intentionally directed against civilians. Reasonable grounds to believe exist that Mr Netanyahu and Mr Gallant, despite having measures available to them to prevent or repress the commission of crimes or ensure the submittal of the matter to the competent authorities, failed to do so.
Background
On 1 January 2015, The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting jurisdiction of the Court since 13 June 2014.
On 2 January 2015, The State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for The State of Palestine on 1 April 2015.
On 22 May 2018, pursuant to articles 13(a) and 14 of the Rome Statute, The State of Palestine referred to the Prosecutor the Situation since 13 June 2014, with no end date.
On 3 March 2021, the Prosecutor announced the opening of the investigation into the Situation in the State of Palestine. This followed Pre-Trial Chamber I's decision on 5 February 2021 that the Court could exercise its criminal jurisdiction in the Situation and, by majority, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.
On 17 November 2023, the Office of the Prosecutor received a further referral of the Situation in the State of Palestine, from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, and on 18 January 2024, the Republic of Chile and the United Mexican State additionally submitted a referral to the Prosecutor with respect to the situation in The State of Palestine.
For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: fadi.el-abdallah@icc-cpi.int
Date: 21 November 2024
PRE-TRIAL CHAMBER I
Before: Judge Nicolas Guillou, Presiding
Judge Reine Adélaïde Sophie Alapini-Gansou
Judge Beti Hohler
SITUATION IN THE STATE OF PALESTINE
Public
Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article
19(2) of the Rome Statute
No. ICC-01/18 1/8 21 November 2024
ICC-01/18-374 21-11-2024 2/8 PT
The Office of the Prosecutor
Mr Karim A.A. Khan
Mr Andrew Cayley
Counsel for the Defence
Legal Representatives of Victims Legal Representatives of Applicants
Unrepresented Victims Unrepresented Applicants for
Participation/Reparations
The Office of Public Counsel
for Victims
The Office of Public Counsel
for the Defence
States Representatives
State of Israel
Amicus Curiae
REGISTRY
Registrar
Mr Osvaldo Zavala Giler
Counsel Support Section
Victims and Witnesses Unit Detention Section
Victims Participation and
Reparations Section
Other
No. ICC-01/18 2/8 21 November 2024
ICC-01/18-374 21-11-2024 3/8 PT
PRE-TRIAL CHAMBER I (the ‘Chamber’) of the International Criminal Court (the ‘Court’)
issues this decision on ‘Israel’s challenge to the jurisdiction of the Court pursuant to article
19(2) of the Rome Statute’ (the ‘Challenge’),
1 submitted by the State of Israel (‘Israel’).
Procedural history
1. On 1 January 2015, the State of Palestine (‘Palestine’) accepted the jurisdiction of the
Court from 13 June 2014 onwards by way of an article 12(3) declaration.
2 The next day, on 2 January 2015, Palestine acceded to the Rome Statute (the ‘Statute’).
3
2. On 22 May 2018, Palestine referred the situation in the State of Palestine to the
Prosecution pursuant to articles 13(a) and 14 of the Statute, following which the
Presidency referred the Situation in the State of Palestine (the ‘Situation’) to the
Chamber.4
3. On 5 February 2021, Pre-Trial Chamber I, in a different composition, by majority,
rendered the Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling
on the Court’s territorial jurisdiction in Palestine’, in which it found that Palestine is a
State Party to the Rome Statute and that, as a consequence, Palestine qualifies as ‘[t]he
State on the territory of which the conduct in question occurred for the purposes of article
12(2)(a) of the Statute’ and that the Court’s territorial jurisdiction in the Situation extends
to the territories occupied by Israel since 1967, namely Gaza and the West Bank,
including East Jerusalem.5
1 23 September 2024, ICC-01/18-354-SECRET-Exp-AnxI-Corr, together with secret Annex A, only available to the Prosecution and the State of Israel. Pursuant to an order of the Chamber, the public redacted version of the Request, as submitted by Israel on 23 September 2024, was reclassified as public: ICC-01/18-354-AnxII-Corr. In the present decision, the Chamber will refer to certain information contained in the annexes classified as secret.
This information is either publicly known, or the Chamber considers it appropriate to make the relevant information public, as part of the present decision.
2 Annex I to Presidency, Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I, 24 May 2018, ICC-01/18-1-Anx1 (‘Annex to Presidency Decision’).
3 Secretary-General of the United Nations, ‘Rome Statute of the International Criminal Court, Rome, 17 July 1998, State of Palestine: Accession’, 6 January 2015, C.N.13.2015, Treaties XVIII.10.
4 Annex to Presidency Decision, p. 3. On 22 April 2024, the Presidency designated Judge Guillou to replace a judge of the Chamber: Presidency, Decision replacing a judge in Pre-Trial Chamber I, 22 April 2024, ICC-01/18-164-SECRET. On 20 May 2024, on instruction of the Presidency, this decision was reclassified as public. On 25 October 2024, the Presidency designated Judge Hohler to replace a judge of the Chamber. Presidency, Decision replacing a judge in Pre-Trial Chamber I, 24 October 2024, ICC-01/18-366.
5 Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021, ICC-01/18-143.
No. ICC-01/18 3/8 21 November 2024
ICC-01/18-374 21-11-2024 4/8 PT
4. On 3 March 2021, the Prosecutor announced the opening of an investigation with respect
to alleged crimes within the jurisdiction of the Court committed in the Situation since 13
June 2014.6
5. On 17 November 2023, the Prosecution received further referrals, pursuant to articles
13(a) and 14 of the Statute, from five State Parties.7 On 14 January 2024, two more State
Parties submitted such a referral to the Prosecution.8
6. On 20 May 2024, the Prosecutor publicly announced that he will be filling applications
for warrants of arrest against Mr Benjamin Netanyahu and Mr Yoav Gallant.9
7. On 20 September 2024, the Registry transmitted the Challenge into the case record.10
Israel requests the Chamber to ‘declare with immediate effect that the investigation of the
Prosecutor in the cases of Mr Netanyahu and Mr Gallant, and the proceedings before this
Chamber under Article 58 of the Statute, are to be suspended until the Court has given its
ruling on this challenge to jurisdiction’ and to ‘determine that the application concerning
Mr Netanyahu and Mr Gallant, and any investigative action on the same jurisdictional
basis, are not within the Court’s jurisdiction’ and to ‘dismiss the [Prosecution]’s
application for arrest warrants for Mr Netanyahu and Mr Gallant’.
8. On 23 September 2024, the Prosecution submitted its response to the Challenge (the
‘Response’).11
9. On 7 October 2024, the Registry transmitted into the case record a request by Israel for
leave to reply to the Response (the ‘Leave to Reply Request’).12
6 OTP/PAL/SPs/Notif/090321/FB, ICC-01/18-355-SECRET-Exp-AnxB.
7 State Party referral in accordance with Article 14 of the Rome Statute of the International Criminal Court, submitted by the Republic of South Africa, the People’s Republic of Bangladesh, the Plurinational State of Bolivia, the Union of the Comoros, and the Republic of Djibouti, dated 17 November 2023; available on the Court’s website at <www.icc-cpi.int/palestine>.
8 Referral by the Republic of Chile and the United Mexican States, dated 18 January 2024; available on the Court’s website at <www.icc-cpi.int/palestine>.
9 Office of the Prosecutor, Statement of ICC Prosecutor Karim A.A. Khan K.C.: Applications for arrest warrants in the situation in the State of Palestine, 20 May 2024, available on the Court’s website at <www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state>.
10 Registry Transmission of “Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute”, 20 September 2024, ICC-01/18-354-SECRET-Exp.
11 Prosecution’s Response to “Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute” – ICC-01/18-354-SECRET-Exp-AnxI-Corr, 27 September 2024, ICC-01/18-357-SECRET-Exp.
12 ICC-01/18-361-SECRET-Exp-Anx.
No. ICC-01/18 4/8 21 November 2024
ICC-01/18-374 21-11-2024 5/8 PT
Determination of the Chamber
Preliminary matter
10. With regard to the Leave to Reply Request, the Chamber considers that the Challenge
and the Response are sufficiently clear and that the issues identified by Israel for further
submissions could either have been reasonably anticipated or do not relate to matters that
the Chamber requires further information on. The Leave to Reply Request is therefore
rejected.
Consideration of the Challenge
11. Israel challenges the Court’s jurisdiction regarding the Prosecution’s applications for
warrants of arrest against Mr Netanyahu and Mr Gallant and any other investigative
action on the same jurisdictional basis.13 Israel argues that Palestine does not possess the
competences required under international law to be able to delegate territorial jurisdiction
to the Court.
12. In terms of standing, Israel refers to the Chamber’s holding in 2021 that issues of
territorial jurisdiction may be raised by interested States based on article 19 of the Statute.
Israel submits that it is a State from which acceptance of jurisdiction is required under
article 12 of the Statute even if there is another State which has delegated jurisdiction to
the Court for that same situation.14
13. This is incorrect as a matter of law. In the matter under consideration, the acceptance by
Israel of the Court’s jurisdiction is not required, as the Court can exercise its jurisdiction
on the basis of the territorial jurisdiction of Palestine. As soon as there is one jurisdictional
basis pursuant to article 12(2)(a) or (b) of the Statute, there is no need for an additional
one.15
14. Israel also argues that its claim that Palestine is not a State on the territory of which the
alleged conduct occurred is in itself sufficient to make it the sole State whose acceptance
of jurisdiction is required.16 It points out that it ‘would be problematic […] to deny
13 Challenge, para. 1.
14 Challenge, paras 38-62.
15 Pre-Trial Chamber II, Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the
Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan,
12 April 2019, ICC-02/17-33, para. 58.
16 Challenge, para. 44.
No. ICC-01/18 5/8 21 November 2024
ICC-01/18-374 21-11-2024 6/8 PT
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.’17 Israel submits that all that is required for it
to have standing under article 19(2)(c) of the Statute is that its claim is prima facie
tenable.18 Israel further alleges that it has an ‘immediate right to challenge jurisdiction
under Article 19 given the current stage of the proceedings’19 and that it is in fact under
an obligation to do so now pursuant to article 19(5) of the Statute.20 According to Israel,
its obligation to act without further delay is triggered by the fact that it now knows, based
on the public statements of the Prosecutor and on the basis of the Requests for Assistance
it received from the Court, that Israeli nationals are the subjects of applications for arrest
warrants in relation to acts that allegedly took place on the territory of Gaza.21
15. First, the Chamber rejects Israel’s argument that merely because it claims that Palestine
could not have delegated jurisdiction to the Court, the Chamber would have to ignore its
previous decision (rendered in a different composition) which has become res judicata.22
Indeed, 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.
16. In any event, Israel’s standing is not an issue in this instance, as Israel clearly would have
standing to bring a challenge as the State of nationality under article 19(2)(b) juncto
article 12(2)(b) of the Statute if the Chamber decides to issue any warrants of arrest for
Israeli nationals. The issue before the Chamber is whether Israel is entitled – or indeed
obliged – to bring such a challenge before the Chamber has ruled on the Prosecution’s
applications for warrants of arrest.23
17. The Chamber notes that States are not entitled under the Statute to challenge jurisdiction
of the Court on the basis of Article 19 prior to the issuance of a warrant of arrest or a
17 Challenge, para. 45.
18 Challenge, para. 45.
19 Challenge, para. 48.
20 Challenge, para. 49.
21 Challenge, para. 49.
22 Decision on the ‘Prosecution’s request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction
in Palestine, 5 February 2021, ICC-01/18-143.
23 See Pre-Trial Chamber I, Situation in the Bolivarian Republic of Venezuela I, Decision authorising the resumption of the investigation pursuant to article 18(2) of the Statute, 27 June 2023, ICC-02/18-45, paras 35-36; with reference to Decision on the ‘Prosecution’s request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 5 February 2021, ICC-01/18-143, paras 73-4.
No. ICC-01/18 6/8 21 November 2024
ICC-01/18-374 21-11-2024 7/8 PT
summons. Indeed, the Prosecution typically conducts the entire application process under
Article 58 of the Statute ex parte. States therefore only become aware of the existence of
the proceedings after the Court has ruled on the application when the arrest warrant or
summons is notified to them or made public. The wording of article 19(2)(b) of the Statute
makes it clear that States may only challenge the Court’s jurisdiction in relation to a
particular case, i.e. 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.
18. The Chamber wishes to reassure Israel that it will not be estopped on the basis of article
19(5) of the Statute from bringing a jurisdictional challenge because of the public
statements made by the Prosecutor or the Requests for Assistance it has received from
the Court in relation to the investigation. Israel will have the full opportunity to challenge
the Court’s jurisdiction and/or admissibility of any particular case if and when the
Chamber issues any arrest warrants or summonses against its nationals.
REJECTS Israel’s request for leave to reply; and
REJECTS Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the
Statute as premature.
No. ICC-01/18 7/8 21 November 2024
ICC-01/18-374 21-11-2024 8/8 PT
Done in English. A French translation will follow. The English version remains authoritative.
_____________________________
Judge Nicolas Guillou
Presiding
_____________________________
Judge Reine Adélaïde Sophie Alapini-
Gansou
_____________________________
Judge Beti Hohler
Dated this Thursday, 21 November 2024
At The Hague, The Netherlands
Date: 21 November 2024
PRE-TRIAL CHAMBER I
Before: Judge Nicolas Guillou, Presiding
Judge Reine Adélaïde Sophie Alapini-Gansou
Judge Beti Hohler
SITUATION IN THE STATE OF PALESTINE
Public
Decision on Israel’s request for an order to the Prosecution to give an Article
18(1) notice
No. ICC-01/18 1/9 21 November 2024
ICC-01/18-375 21-11-2024 2/9 PT
The Office of the Prosecutor
Mr Karim A.A. Khan
Mr Andrew Cayley
Counsel for the Defence
Legal Representatives of Victims Legal Representatives of Applicants
Unrepresented Victims Unrepresented Applicants for
Participation/Reparations
The Office of Public Counsel for Victims
The Office of Public Counsel for the Defence
States Representatives State of Israel
Amicus Curiae
REGISTRY
Registrar
Mr Osvaldo Zavala Giler
Counsel Support Section
Victims and Witnesses Unit Detention Section
Victims Participation and
Reparations Section
Other
No. ICC-01/18 2/9 21 November 2024
ICC-01/18-375 21-11-2024 3/9 PT
PRE-TRIAL CHAMBER I (the ‘Chamber’) of the International Criminal Court (the ‘Court’)
issues this decision on the ‘Abridged Request for an Order Requiring an Article 18(1) Notice,
and Staying Proceedings Pending Such a Notice’ (the ‘Request’)1 by the State of Israel
(‘Israel’).
Procedural history
1. On 1 January 2015, the State of Palestine (‘Palestine’) accepted the jurisdiction of the
Court from 13 June 2014 onwards by way of an article 12(3) declaration,2 and the next
day, on 2 January 2015, Palestine acceded to the Rome Statute (the ‘Statute’).
3
2. On 22 May 2018, Palestine referred the situation in the State of Palestine to the
Prosecution pursuant to articles 13(a) and 14 of the Statute, following which the
Presidency referred the Situation in the State of Palestine (the ‘Situation’) to the
Chamber.4
3. On 17 November 2023, the Prosecution received referrals, pursuant to articles 13(a) and
14 of the Statute, from five State Parties.5 On 14 January 2024, two more State Parties
submitted such a referral to the Prosecution.6
1 23 September 2023, ICC-01/18-355-SECRET-Exp-AnxI-Corr, together with secret Annexes A to G, only available to the Prosecution and the State of Israel. Pursuant to an order by the Chamber on 4 October 2024, the request was reclassified as public: ICC-01/18-355-AnxI-Corr. In the present decision, the Chamber will refer to certain information contained in the annexes classified as secret or in other filings, such as the Prosecution’s response to the Request, that are at present classified as secret. The information referred to is either publicly
known, or the Chamber considers it appropriate to make the relevant information or the existence of a filing public, as part of the present decision.
2 Annex I to Presidency, Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I, 24 May 2018, ICC-01/18-1-Anx1 (‘Annex to Presidency Decision’).
3 Secretary-General of the United Nations, ‘Rome Statute of the International Criminal Court, Rome, 17 July 1998, State of Palestine: Accession’, 6 January 2015, C.N.13.2015, Treaties XVIII.10.
4 Annex to Presidency Decision, p. 3. On 22 April 2024, the Presidency designated Judge Guillou to replace a judge of the Chamber: Presidency, Decision replacing a judge in Pre-Trial Chamber I, 22 April 2024, ICC-01/18-164-SECRET. On 20 May 2024, on instruction of the Presidency, this decision was reclassified as public. On 25 October 2024, the Presidency designated Judge Hohler to replace a judge of the Chamber. Presidency, Decision
replacing a judge in Pre-Trial Chamber I, 24 October 2024, ICC-01/18-366.
5 See Prosecutor’s consolidated response to observations by interveners pursuant to article 68(3) of the Rome Statute and rule 103 of the Rules of Procedure and Evidence, 23 August 2024, ICC-01/18-346 (‘Consolidated Response’), para. 4, referring to The Republic of South Africa, the People’s Republic of Bangladesh, the Plurinational State of Bolivia, the Union of the Comoros, and the Republic of Djibouti, State Party referral in accordance with Article 14 of the Rome Statute of the International Criminal Court, 17 November 2023, available
at <https://www.icc-cpi.int/sites/default/files/2023-11/ICC-Referral-Palestine-Final-17-November-2023.pdf>.
6 See Consolidated Response, referring to The Republic of Chile and the United Mexican States, State Party referral in accordance with Article 14 of the Rome Statute of the International Criminal Court, 18 January 2024, available at <https://www.icc-cpi.int/sites/default/files/2024-01/2024-01-18-Referral_Chile_Mexico.pdf>.
No. ICC-01/18 3/9 21 November 2024
ICC-01/18-375 21-11-2024 4/9 PT
4. On 23 August 2024, the Registry transmitted to the Chamber a request by Israel for an
extension of the page limit from 20 to 35 pages for an intended filing ‘in relation to the
Prosecutor’s non-compliance with article 18(1) of the Statute, and its consequences’.7 On
5 September 2024, the Prosecution opposed the request for extension of the page limit.8
On 12 September 2024, the Registry transmitted to the Chamber a request by Israel for
leave to reply to the Prosecution’s response to the request for an extension of the page
limit.9
5. On 20 September 2024, the Registry transmitted to the Chamber the Request, in which
the State of Israel (‘Israel’) requests the Chamber to ‘require the Prosecutor to give an
article 18(1) notice setting out the new defining parameters of his investigation in this
Situation, or in any other Situation that has now been constituted as a result of the two
referrals made by a total of seven States Parties following 7 October 2023’10.
6. On 27 September 2024, the Chamber received the Prosecution’s response to the Request
(the ‘Response’),11 arguing that the Request should be dismissed in limine for lack of
standing. Furthermore, the Prosecution submits that the cases described in its applications
under article 58 of the Statute fall within the parameters of this Situation; that its
notification under article 18(1) of the Statute was sufficiently specific and consistent with
the Palestine’s referral; and that Israel misunderstands the Court’s jurisprudence.12
7. On 7 October 2024, the Registry transmitted to the Chamber a request by Israel for leave
to reply to the Response (the ‘Leave to Reply Request’).13
7 Registry Transmission of Request to extend the page limit for submissions concerning article 18(1), ICC-01/18-345-SECRET-Exp. Israel’s request, with filing number ICC-01/18-345-Anx was reclassified as public on 4 October 2024.
8 Prosecution Response to Israel’s “Request to extend the page limit for submissions concerning article 18(1)” (ICC-01/18-345-SECRET-Exp-Anx, ICC-01/18-345-SECRET-Exp. On 10 October 2024, this filing was reclassified as public (ICC-01/18-345).
9 Registry Transmission of a ‘Request for leave to reply to the ‘Prosecution Response to Israel’s “Request to extend the page limit for submission concerning article 18(1)” (ICC-01/18-345-SECRET-Exp-Anx)’, ICC-01/18-352-SECRET-Exp.
10 Request, para. 61.
11 Prosecution’s Response to Israel’s “Abridged Request for an Order Requiring an Article 18(1) Notice, and Staying Proceedings Pending Such a Notice” – ICC-01/18-355-SECRET-Exp-AnxI-Corr, ICC-01/18-360-SECRET-Exp.
12 Response, paras 22-28.
13 ICC-01/18-362-SECRET-Anx.
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II. Determination
Preliminary matters
8. The Chamber observes that Israel submitted the Request before the Chamber ruled on its
request for an extension of the page limit and the related request for leave to reply to the
Prosecution’s opposition to such an extension. These requests have become moot with
the submission of the Request.
9. As to the Leave to Reply Request, the Chamber considers that the Request and Response
are clear and that no further submissions are required for the Chamber to consider the
matter.
Consideration of the merits of the Request
10. Based on the submissions of Israel and the Prosecution, as well as the material before the
Chamber, the Chamber understands that:
• On 9 March 2021, the Prosecution notified all States Parties and other States with
jurisdiction, including Israel, pursuant to article 18(1) of the Statute, that it had
initiated an investigation in the Situation (the ‘Notification’).14
• On 8 April 2021, Israel sent a letter to the Prosecution, indicating its ‘firm […]
view that the Court manifestly lacks jurisdiction’ over the Situation; and
submitting that ‘Israel’s robust legal system […] has and will continue to examine
and investigate rigorously all allegations of misconduct or crimes […] and to hold
to account those persons within its jurisdiction found to be responsible’ (the ‘8
April 2021 Letter’).15
• On 9 April 2021, with reference to the 8 April 2021 Letter, the Prosecution sent a
letter to Israel, inter alia, requesting clarification whether it was ‘the Government
of Israel’s intention […] to trigger the application of article 18(2) of the Statute,
and if so, the specific domestic proceedings to which any request for deferral
under article 18(2) might relate’ (the ‘Clarification Request’).16
14 ICC-01/18-355-SECRET-Exp-AnxB.
15 ICC-01/18-355-SECRET-Exp-AnxC.
16 ICC-01/18-355-SECRET-Exp-AnxD.
No. ICC-01/18 5/9 21 November 2024
ICC-01/18-375 21-11-2024 6/9 PT
• On 26 April 2021, the Legal Advisor of the Embassy of Israel to The Netherlands
sent an email to the Prosecution, conveying that Israel: (i) ‘maintains its principled
position that the Court manifestly lacks jurisdiction’ over the Situation; (ii)
‘maintains its grave reservations […] regarding the handling of this situation by
the OTP’; and (iii) ‘will continue to examine and investigate rigorously all
allegations of misconduct or crimes, regardless of their source, and to hold to
account those responsible’ (the ‘26 April 2021 Letter’).17
• On 1 May 2024, Israel sent a letter to the Prosecution requesting it to ‘defer any
investigation it may be conducting in relation to any alleged criminal acts
attributed to Israeli nationals or others within Israel’s jurisdiction, in favour of
Israel’s processes for review, examination, investigation and proceedings under
its national legal system’ (the ‘1 May 2024 Letter’).18
• On 7 May 2024, the Prosecution responded to the 1 May 2024 Letter by stating
that Israel has ‘no standing now, under the Statute, to make such an application’
given that it had ‘expressly declined to make an application for deferral of the
investigation within the prescribed time limit’.19
11. In its Request, Israel inter alia submits that, in its 8 April 2021 Letter, it asserted that the
Notification was not ‘sufficiently specific’ and that it reiterated this assertion in its 26
April 2021 Letter. Israel does not indicate what the consequence of its contention would
be, but to the extent it intends to argue that the Notification was deficient and as such
cannot have served as a notification pursuant to article 18(1) of the Statute, this argument
fails. Based on the material before it, the Chamber considers that the Prosecution
complied with its statutory obligations when it provided Israel and other States with the
Notification. As explained by the Appeals Chamber, a notification under article 18(1) of
the Statute ‘shall contain information “relevant for the purposes of article 18 paragraph
2” of the Statute’, namely: the general parameters of the situation and sufficient detail
with respect to the groups or categories of individuals in relation to the relevant
criminality, including the patterns and forms of criminality, that the Prosecution intends
17 ICC-01/18-355-SECRET-Exp-AnxE.
18 ICC-01/18-355-SECRET-Exp-AnxF.
19 ICC-01/18-355-SECRET-Exp-AnxG.
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to investigate.20 The Chamber specifically notes that the Notification included the types
of alleged crimes, potential alleged perpetrators, the starting point of the relevant
timeframe, as well as a reference to further relevant information, including the summary
of the Prosecution’s preliminary examination findings. Therefore, the Notification was
sufficiently specific.21
12. Based on the material before it, the Chamber notes that, despite the Prosecution’s
Clarification Request, Israel did not proceed to request a deferral under article 18(2) of
the Statute in 2021. Instead, it merely repeated its previous arguments on the Court’s
alleged lack of jurisdiction and stated that it continued investigating all relevant crimes.
In this regard, the Chamber recalls that, ‘[f]or a State to be successful in seeking a deferral
[…], it is [neither] enough for it to make a blanket statement that the Court lacks […]
jurisdiction […]’;22 nor to simply assert that it is investigating or prosecuting crimes
which may constitute crimes under article 5 of the Statute and that relate to the
notification under article 18(1) of the Statute.23 Therefore, Israel’s 8 April 2021 Letter
and 26 April 2021 Letter did not constitute a deferral request under article 18(2) of the
Statute.
13. The Chamber further notes that, pursuant to article 18(2) of the Statute, a State may
inform the Court that ‘it is investigating or has investigated its nationals or others within
its jurisdiction with respect to criminal acts which may constitute crimes referred to in
article 5 and which relate to the information provided in the notification to States
[provided by the Prosecution under article 18(1) of the Statute]’ within a period of one
month of receipt of said notification. In light of this, the statutory time limit had passed
in April 2021 without Israel having requested a deferral under article 18(2) of the Statute.
14. In any case, filing of the Request at this point in time – namely after the Prosecution
announced it had filed applications for warrants of arrest and three years after the passing
of the statutory time limit – appears to go against the very object and purpose of the
20 Appeals Chamber, Situation in the Bolivarian Republic of Venezuela I, Judgment on the appeal of the Bolivarian Republic of Venezuela against Pre-Trial Chamber I’s “Decision authorising the resumption of the investigation pursuant to article 18(2) of the Statute”, 1 March 2024, ICC-02/18-89 (the ‘Venezuela OA Judgment’), para. 114; see also para. 110.
21 Venezuela OA Judgment, paras 116.
22 Venezuela OA Judgment, para. 12.
23 See Venezuela OA Judgment, paras 64-78. See also Appeals Chamber, Situation in the Republic of the Philippines, Judgment on the appeal of the Republic of the Philippines against Pre-Trial Chamber I’s “Authorisation pursuant to article 18(2) of the Statute to resume the investigation”, 18 July 2023, ICC-01/21-77, para. 76.
No. ICC-01/18 7/9 21 November 2024
ICC-01/18-375 21-11-2024 8/9 PT
statutory complementarity framework. The purpose of Article 18(2) proceedings is to
allow for complementarity-related admissibility challenges to be brought at the initial
stage of the investigation and not at a point in time when the investigation has
substantially advanced. Where a State is given the opportunity to assert its right to
exercise jurisdiction, but it has declined, failed or neglected to do so, the investigation
may proceed.
15. The Chamber is also not persuaded by Israel’s submissions that ‘a new situation has
arisen’,24 or an ‘investigation with new “defining parameters” has been taking place since
7 October 2023’. 25 The Chamber notes that the Notification indicated that the
investigation concerned alleged crimes in the context of an international armed conflict,
Israel’s alleged conduct in the context of an occupation, and a non-international armed
conflict between Hamas and Israel. In the applications for warrants of arrest, as also
explained by the Prosecutor in his public statement at the time of filing the applications,
the Prosecution alleges conduct committed in the context of the same type of armed
conflicts, concerning the same territories, with the same alleged parties to these conflicts.
Therefore, no substantial change has occurred to the parameters of the investigation into
the situation.26 The Chamber notes that Israel’s position would effectively mean that the
Prosecution’s investigation in every situation would be limited to the incidents and crimes
addressed during the preliminary examination and described in the article 18 notification.
Such interpretation has already been rejected by the Appeals Chamber.27 There was, and
is, therefore, no obligation for the Prosecution to provide a new notification to the relevant
States pursuant to article 18(1) of the Statute, and as such to provide a new one-month
timeline for requests for deferral.
16. The Chamber’s conclusions do not impact, in any way, on the ability of States, including
Israel, to raise issues of admissibility for cases brought by the Prosecution in the context
of the investigation. Indeed, article 19(2)(b) of the Statute allows ‘a State which has
24 Request, paras 2, 19-30.
25 Request, paras 31-58.
26 See also Appeals Chamber, Situation in the Islamic Republic of Afghanistan, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber II entitled “Decision pursuant to article 18(2) of the Statute authorising the Prosecution to resume investigation”, ICC-02/17-138, 5 March 2020.
27 Ibid, para. 63-64. See also Venezuela OA Judgment, para. 230. The Appeals Chamber reiterated that the obligation to provide sufficiently specific information in an article 18 notification does not in any way limit the Prosecution’s future investigations.
No. ICC-01/18 8/9 21 November 2024
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jurisdiction over a case’ to challenge the admissibility of such a case, ‘on the ground that
it is investigating or prosecuting or has investigated or prosecuted’ the respective case.
DECLARES Israel’s request for an extension of the page limit and its request for leave to
reply to the Prosecution’s response to the page limit request moot;
REJECTS Israel’s request for leave to reply; and
REJECTS Israel’s request for an order to the Prosecution to give an Article 18(1) notice and
staying proceedings pending such notice.
Done in English. A French translation will follow. The English version remains authoritative.
_____________________________
Judge Nicolas Guillou
Presiding
_____________________________
_____________________________
Judge Reine Adélaïde Sophie Alapini-
Gansou
Judge Beti Hohler
Dated this Thursday, 21 November 2024
At The Hague, The Netherlands
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