Success for Israel at ICC: Appeals Court orders re-examination of Criminal Court’s jurisdiction

In a rare victory for Israel in the international arena, the International Criminal Court’s (ICC) Appeals Chamber unanimously ordered a lower chamber to re-examine Israel’s arguments disputing the court’s jurisdiction over the country.

Last November, the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant “for crimes against humanity and war crimes” allegedly committed during the Gaza War.

Israel’s Foreign Minister Gideon Sa’ar praised the ICC's decision saying, “We said it from the start: The International Criminal Court in The Hague (ICC) 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,” Sa’ar stated.

The five judges didn’t rule over the jurisdiction itself but criticized the Pre-Trial Chamber for not properly considering Israel’s arguments in the case and ordered the reassessment.

While welcoming the decision to reconsider Israel’s arguments, a senior aide to the prime minister criticized the ICC for not suspending the arrest warrants, stating, “Israel expects the [ICC] to cancel the warrants immediately.”

The aide told The Times of Israel that the ICC's decision “highlights the injustice done to Prime Minister Netanyahu and the former defense minister, when the Court issued absurd warrants without having the authority to do so.”

Israeli UN Ambassador Danny Danon said the decision to reconsider Israel's case “exposes the lack of legitimacy behind the political arrest warrants.”

“When international institutions punish democracies and ignore terrorism, they harm not only Israel but the very values on which the free world is built,” Danon added.

Since Israel didn’t ratify the Rome Statutes, the treaty that established the ICC and defines its jurisdiction, Jerusalem argues that the court doesn’t have authority over the country and therefore has no grounds to issue international arrest warrants against its leaders.

In a detailed explanation of its decision to issue the warrants, the ICC had written that it had found “reasonable grounds to believe” that Netanyahu and Gallant “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.”

Israel also challenged the court’s jurisdiction over the Palestinian Territories, based on the Rome Statute's own defining articles. “The absence of sovereign Palestinian territory means that there is no ‘territory of' a State (within the meaning of Article 12(2)(a)) over which the Court may exercise its jurisdiction,” Israel claimed. 

Israel argued that if the court were to assert jurisdiction over the Palestinian Territories, it “would require it to act in contravention of binding Israeli-Palestinian agreements that expressly leave such matters to direct negotiation between the Parties, and to make determinations that are wholly unsuitable for an international criminal tribunal.”