Israel & the International Criminal Court

"I. INTRODUCTION
1.Israel has never received notice with respect to the scope of the Prosecution’s intended investigations into the events arising from Hamas’s unprecedented and cataclysmic attack on Israel starting on the morning of 7 October 2023.1 Notice of such investigations is required, pursuant to article 18(1) of the Rome Statute, to provide States – including States that are not party to the Rome Statute and which dispute the Court’s jurisdiction – with the opportunity of showing that they are exercising their own jurisdiction in respect of the alleged criminality. This is not a technical rule: it is the “central premise of the Court’s exercise of jurisdiction.”2 “No State should have to face”, as the Appeals Chamber has stated, the “serious reproach” of not acting “without at least being given an opportunity to explain itself.”3

2. Instead of promptly providing such a notice following 7 October when its investigations were just starting, the ICC Prosecution purported to rely on a notice as to the scope of its intended investigations into the Palestine situation in March 2021. The Prosecution refused to provide Israel with a new article 18(1) notice, even though circumstances required a new investigation, ab initio, into wholly new and unprecedented events, and involving allegations of fundamentally different types of criminality committed in radically different circumstances. The March 2021 notice did not provide, and could not have provided, that notice. Nevertheless, the Pre-Trial Chamber – on the same day that it issued arrest warrants derived from that post-7 October investigation – has now affirmed that deeply flawed approach.4

3. The fundamental error committed by the Pre-Trial Chamber is its finding that no “‘new situation has arisen’” and that “no substantial change has occurred in the parameters of the investigation into the situation” since 7 October 2023.5 This conclusion does not accord with reality or common sense. No one could have foreseen or contemplated that the nature, scale, type, or context of the criminality alleged in the Prosecution’s arrest warrants would be part of the ICC’s investigations as defined in the notification given in March 2021. The change of circumstance is so fundamental that seven States, following 7 October 2023, sent referrals purportedly triggering the jurisdiction of the Court, purporting not only to encourage renewed investigations, but referring new crimes, new events, and a new situation of crisis.

4. Israel hereby urgently requests leave to appeal the Impugned Decision, which is infected by fundamental errors of both law and fact. The Impugned Decision involves issues that significantly affect the fair and expeditious conduct of proceedings, or their outcome, and for which immediate resolution by the Appeals Chamber may materially advance the proceedings.
…
IV. SUBMISSIONS AS TO APPEALABLE ISSUES
A. First Issue: Whether the Pre-Trial Chamber erred in finding that no new situation had arisen, and that no substantial change had occurred in the parameters of the investigation into the situation, following 7 October 2023

21. Israel submits that the Pre-Trial Chamber erred in concluding that there had been “no substantial change” in “the parameters” of the Prosecution’s investigation.41 Viewed in conjunction with the jurisprudence developed in the Venezuela and The Philippines situations, this is the decisive and determinative finding for the pre-Trial Chamber’s conclusion that the Prosecutor was not required to issue a new article 18(1) notice following 7 October 2023. This conclusion was based, in turn, on the Pre-Trial Chamber’s assessment of certain criteria, namely type of armed conflicts, geography, and parties to the conflict. Israel submits that the Pre-Trial Chamber misapplied these criteria, and failed to take into consideration other relevant criteria, in reaching this conclusion. Furthermore, the Pre-Trial Chamber erroneously relied on a decision rendered by the Appeals Chamber in the Afghanistan situation addressing only the issue of the scope of an investigation authorized under article 15, not the separate question of the conditions requiring the issuance of a new article 18(1) notification. Accordingly, this is an issue that arises directly from the Impugned Decision, and that is decisive – i.e. “essential” – to its ultimate rejection of the Article 18(1) Request.42 The issue is not merely one with which Israel disagrees, but is one that was necessary for, and integral to, the Pre-Trial Chamber’s determination of the request.

B. Second Issue: Whether the Pre-Trial Chamber erred in finding that any other approach “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”

22. The Pre-Trial Chamber erred in positing that Israel’s approach, as derived from the jurisprudence set out in the Venezuela and Philippines situations, would mean that investigations are limited to specific incidents expressly enumerated in an article 18(1) notice. This in terrorem scenario mischaracterizes the position set out in the Article 18(1) Request, and relied on precedent from the entirely different context of the scope of an authorization under Article 15 of the Statute.43 In addition, the Pre-Trial Chamber hardly addressed at all the relevant Appeals Chamber jurisprudence, taking out of context a single phrase which again conflates the issue of the scope of investigations and the notice requirements of article 18.44

23. Despite the lack of reasoning substantiating this approach, the Pre-Trial Chamber’s ultimate disposition of the Article 18(1) Request appears to have been substantially impacted by it…”

"I. INTRODUCTION

1. Israel has never received notice of the scope of the Prosecution’s intended investigations into the events arising from Hamas’s unprecedented and cataclysmic attack on Israel starting on the morning of 7 October 2023.1 Notice of such investigations is required, pursuant to article 18(1) of the Rome Statute, to provide States – including States that are not party to the Rome Statute and which dispute the Court’s jurisdiction – with the opportunity of showing that they are exercising their own jurisdiction in respect of the alleged criminality. This is not a technical rule: it is the “central premise of the Court’s exercise of jurisdiction.”2 “No State should have to face”, as the Appeals Chamber has stated, the “serious reproach” of not acting “without at least being given an opportunity to explain itself.”3

2. Instead of promptly providing such a notice following 7 October when its investigations were just starting, the Prosecution purported to rely on a notice as to the scope of its intended investigations into the Palestine situation in March 2021. The Prosecution refused to provide Israel with a new article 18(1) notice, even though circumstances required a new investigation, from scratch, into wholly new and unprecedented events, and involving allegations of fundamentally different types of criminality committed in radically different circumstances. The March 2021 notice did not provide, and could not have provided, that notice. Nevertheless, the Pre-Trial Chamber – on the same day that it issued arrest warrants derived from that post-7 October investigations – has now affirmed that deeply flawed approach.4

3. Israel hereby provides notice of its intent to appeal the Impugned Decision, which declines to require the Prosecution to provide Israel with notice, pursuant to its obligation under article 18(1) of the Statute, of the parameters of its post-7 October investigations. This failure has deprived Israel of the opportunity of showing that its own domestic investigations sufficiently mirror those of the Prosecution which, in turn, would require it to defer its investigations, subject to potential judicial review.

4. The significance of the Impugned Decision cannot be over-stated. It goes to the heart of the Court’s relations with sovereign States, especially those that are not party to the Rome Statute. Furthermore, it goes to the heart of the important role that must be played by the ICC judiciary in ensuring that the Prosecutor – whose primary function is to aggressively investigate and prosecute– adheres to the constraints imposed upon him by the Statute and by the principle of complementarity.

5. Israel lodges this notice as a matter of right pursuant to article 82(1)(a) as being a “decision with respect to […] admissibility.” Furthermore, Israel requests that this appeal be given “suspensive effect” pursuant to article 82(3) and rule 156(5) which, in the present context, requires that the arrest warrants issued ex parte by the Pre-Trial Chamber, as well as any other legal acts taken by the Court based thereon, be suspended for the duration of an appeal.
…
III. THE APPEAL IS ADMISSIBLE UNDER ARTICLE 82(1)(A)
18. Article 82(1)(a) provides that either party may appeal “[a] decision with respect to jurisdiction or admissibility.” 19.

20. The Appeals Chamber has explained that it: [U]nderstands from the phrase ‘decision with respect to’ that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case. It is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility. As previously held by the Appeals Chamber, a decision of a Pre-Trial or Trial Chamber may constitute a “decision with respect to […] admissibility” only to the extent that it consisted of or “was based on” a ruling that a case was admissible or inadmissible.28 In that case, the Appeals Chamber was seized of a notice of appeal concerning a request by Kenya to the Prosecutor for information under article 93(10) which “was not linked to the admissibility of pending cases.”29 Indeed, Kenya apparently acknowledged that “its challenge to the admissibility of the pending cases ‘is, of course, not at all, dependent on” the resolution of its Request for Assistance.”30

21. The admissibility prong of Article 82(1)(a) is not limited to decisions based on article 18(2). Indeed, previous rulings on admissibility have been appealed as of right even though they were not decided within the specific context of article 18(2) litigation. Hence, the Prosecutor was permitted to appeal as of right a decision made under article 58 declining to issue an arrest warrant in respect of the specific finding that the case was inadmissible.31 The Appeals Chamber subsequently explained that this was because “the Pre-Trial Chamber had the power to determine admissibility in that context.”32

22. Yekatom was permitted to appeal as of right a decision on admissibility where the sole ground of appeal argued was not a finding that the case was admissible under article 17(1), but rather the related procedural error of “denying the Defence’s admissibility challenge without first seeking observations from [State] authorities.”33 No party objected to this ground of appeal as not falling within the parameters of article 82(1)(a), and the Appeals Chamber entertained the appeal without commenting on its admissibility. The Impugned Decision is of a strikingly similar nature to that appealed in Yekatom and, in the event, the Appeals Chamber determined that the Trial Chamber had erred by not inviting submissions from the concerned State…”

"I. INTRODUCTION

1. Pre-Trial Chamber I, on the same day that it issued arrest warrants against the Prime Minister and former Minister of Defence of Israel, rejected – on the basis of procedural grounds Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2)(c) of the ICC Statute.1 As part of that challenge, Israel had requested that the Court determine that the Prosecutor’s article 58 “application concerning Mr. Netanyahu and Mr. Gallant, and any investigative action on the same jurisdictional basis, are not within the Court’s jurisdiction”. Despite the critical importance of the Court adhering to its jurisdictional limitations when issuing arrest warrants, the Pre-Trial Chamber dismissed, without substantive scrutiny, Israel’s serious objections as to the Court’s lack of jurisdiction with respect to the Palestine Situation. Rather, the Pre-Trial Chamber held that: (i) Israel does not have standing to file a jurisdictional challenge pursuant to article 19(2)(c) at all; and (ii) States do not have standing to file a jurisdictional challenge pursuant to article 19(2) prior to the issuance of arrest warrants. The issuance of the Impugned Decision and the arrest warrants on the same day also deprived Israel of any opportunity to appeal this decision prior to the issuance of arrest warrants against its democratically elected officials.

2. Against this background, Israel urgently files this notice of appeal against the decision of Pre-Trial Chamber I rejecting Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the ICC Statute.2 This rejection of Israel’s standing to bring a jurisdictional challenge means that a drastic step – the issuance of arrest warrants – has taken place without any judicial consideration of Israel’s submissions on jurisdiction. The refusal to substantively consider these submissions is particularly egregious considering that, simultaneously, the Trial Chamber made an ex parte determination, as it was required to do pursuant to article 19(1) of the Statute, that it had jurisdiction to issue the arrest warrants.3

3. The Impugned Decision’s significance cannot be over-stated. The Court’s article 19(1) obligation to “satisfy itself that it has jurisdiction in any case brought before it” and the ability of States to bring challenges to the jurisdiction of the Court under article 19(2) are not mere formalities. Jurisdiction plays a critical role in defining judicial competence in order to prevent abuse of the judicial process and guarantee that courts do not exceed the carefully defined mandates entrusted to them, including when issuing arrest warrants. The Court’s legitimacy depends, in equal measure, both on the effective discharge of its mandate, and on adherence to its jurisdictional limitations. The latter is further safeguarded by sovereign States, including those that are not party to the ICC Statute, being permitted to exercise their rights to challenge the Court’s jurisdiction.

4. The Impugned Decision adopts and applies a test for standing that, in essence, eliminates any opportunity for (a) a State to challenge the jurisdiction of the Court prior to arrest warrants being issued; (b) a suspect’s State of nationality to challenge the jurisdiction of the Court on the basis that article 12(2)(a)’s territorial precondition to the exercise of jurisdiction is not satisfied. Further, the Impugned Decision effectively holds that a Pre-Trial Chamber’s article 19(3) decision on jurisdiction that specifically reserves an issue for further consideration nonetheless operates as res judicata thus barring future scrutiny of the issue that it reserved. The Chamber’s Impugned Decision seriously curtails the rights of States, and undermines the foundational jurisdictional safeguards enshrined in the ICC Statute. Moreover, it is set out in a decision which is summary in nature and lacking as to reasoning and discussion of the relevant jurisprudence.

5. Israel lodges this notice of appeal as a matter of right pursuant to article 82(1)(a) as the Impugned Decision is a “decision with respect to […] jurisdiction.” Furthermore, Israel requests that this appeal be given “suspensive effect” pursuant to article 82(3) which, in the present context, requires any purported legal effect of the arrest warrants issued ex parte by the Pre-Trial Chamber, as well as any other purported exercise of jurisdiction by the Court, be suspended.
…
III. THE APPEAL IS ADMISSIBLE UNDER ARTICLE 82(1)(A)
20. Article 82(1)(a) provides that either party may appeal “[a] decision with respect to jurisdiction or admissibility.” The Appeals Chamber has explained that it: [U]nderstands from the phrase ‘decision with respect to’ that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case. It is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility. As previously held by the Appeals Chamber, a decision of a Pre-Trial or Trial Chamber may constitute a “decision with respect to […] admissibility” only to the extent that it consisted of or “was based on” a ruling that a case was admissible or inadmissible.36

21. The Appeals Chamber has previously recalled in the specific context of “a decision with respect to jurisdiction” for the purposes of article 82(1)(a) that: The jurisdiction of the Court is defined by the Statute. The notion of jurisdiction has four different facets: subject-matter jurisdiction also identified by the Latin maxim jurisdiction ratione materiae, jurisdiction over persons, symbolized by the Latin maxim jurisdiction ratione personae, territorial jurisdiction – jurisdiction ratione loci- and lastly jurisdiction ratione temporis. These facets find expression in the Statute…”

"I. INTRODUCTION

1. Israel has never received notice of the scope of the Prosecution’s intended investigations into the events arising from Hamas’s unprecedented and cataclysmic attack on Israel starting on the morning of 7 October 2023.1 Notice of such investigations is required, pursuant to article 18(1) of the Rome Statute, to provide States – including States that are not party to the Rome Statute and which dispute the Court’s jurisdiction – with the opportunity of showing that they are exercising their own jurisdiction in respect of the alleged criminality. This is not a technical rule: it is the “central premise of the Court’s exercise of jurisdiction.”2 “No State should have to face”, as the Appeals Chamber has stated, the “serious reproach” of not acting “without at least being given an opportunity to explain itself.”3

2. Instead of promptly providing such a notice following 7 October when its investigations were just starting, the Prosecution purported to rely on a notice as to the scope of its intended investigations into the Palestine situation in March 2021. The Prosecution refused to provide Israel with a new article 18(1) notice, even though circumstances required a new investigation, from scratch, into wholly new and unprecedented events, and involving allegations of fundamentally different types of criminality committed in radically different circumstances. The March 2021 notice did not provide, and could not have provided, that notice. Nevertheless, the Pre-Trial Chamber – on the same day that it issued arrest warrants derived from that post-7 October investigations – has now affirmed that deeply flawed approach.4

3. Israel hereby provides notice of its intent to appeal the Impugned Decision, which declines to require the Prosecution to provide Israel with notice, pursuant to its obligation under article 18(1) of the Statute, of the parameters of its post-7 October investigations. This failure has deprived Israel of the opportunity of showing that its own domestic investigations sufficiently mirror those of the Prosecution which, in turn, would require it to defer its investigations, subject to potential judicial review.

4. The significance of the Impugned Decision cannot be over-stated. It goes to the heart of the Court’s relations with sovereign States, especially those that are not party to the Rome Statute. Furthermore, it goes to the heart of the important role that must be played by the ICC judiciary in ensuring that the Prosecutor – whose primary function is to aggressively investigate and prosecute– adheres to the constraints imposed upon him by the Statute and by the principle of complementarity.

5. Israel lodges this notice as a matter of right pursuant to article 82(1)(a) as being a “decision with respect to […] admissibility.” Furthermore, Israel requests that this appeal be given “suspensive effect” pursuant to article 82(3) and rule 156(5) which, in the present context, requires that the arrest warrants issued ex parte by the Pre-Trial Chamber, as well as any other legal acts taken by the Court based thereon, be suspended for the duration of an appeal.
…
III. THE APPEAL IS ADMISSIBLE UNDER ARTICLE 82(1)(A)
18. Article 82(1)(a) provides that either party may appeal “[a] decision with respect to jurisdiction or admissibility.” 19.

20. The Appeals Chamber has explained that it: [U]nderstands from the phrase ‘decision with respect to’ that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case. It is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility. As previously held by the Appeals Chamber, a decision of a Pre-Trial or Trial Chamber may constitute a “decision with respect to […] admissibility” only to the extent that it consisted of or “was based on” a ruling that a case was admissible or inadmissible.28 In that case, the Appeals Chamber was seized of a notice of appeal concerning a request by Kenya to the Prosecutor for information under article 93(10) which “was not linked to the admissibility of pending cases.”29 Indeed, Kenya apparently acknowledged that “its challenge to the admissibility of the pending cases ‘is, of course, not at all, dependent on” the resolution of its Request for Assistance.”30

21. The admissibility prong of Article 82(1)(a) is not limited to decisions based on article 18(2). Indeed, previous rulings on admissibility have been appealed as of right even though they were not decided within the specific context of article 18(2) litigation. Hence, the Prosecutor was permitted to appeal as of right a decision made under article 58 declining to issue an arrest warrant in respect of the specific finding that the case was inadmissible.31 The Appeals Chamber subsequently explained that this was because “the Pre-Trial Chamber had the power to determine admissibility in that context.”32

22. Yekatom was permitted to appeal as of right a decision on admissibility where the sole ground of appeal argued was not a finding that the case was admissible under article 17(1), but rather the related procedural error of “denying the Defence’s admissibility challenge without first seeking observations from [State] authorities.”33 No party objected to this ground of appeal as not falling within the parameters of article 82(1)(a), and the Appeals Chamber entertained the appeal without commenting on its admissibility. The Impugned Decision is of a strikingly similar nature to that appealed in Yekatom and, in the event, the Appeals Chamber determined that the Trial Chamber had erred by not inviting submissions from the concerned State…”

"I. INTRODUCTION
1. On 27 November 2024, Israel filed a direct appeal before the Appeals Chamber under article 82(1)(a) of the Statute (“Appeal”)1 against Pre-Trial Chamber I’s “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” (“Decision”).2 Simultaneously, “out of an abundance of caution”,3 Israel also filed an application for leave to appeal before Pre-Trial Chamber I under article 82(1)(d) of the Statute against the same Decision (“Application for Leave”).4 In its Appeal, Israel requests that the Appeals Chamber suspend the Pre-Trial Chamber’s arrest warrants against Benjamin Netanyahu and Yoav Gallant pursuant to article 82(3) pending the resolution of the Appeal (“Suspension Request”).5

2. The Prosecution respectfully submits that Israel’s Appeal should be dismissed in limine.6 The Decision is not a decision “with respect to […] admissibility” and is therefore not directly appealable on this ground pursuant to article 82(1)(a) of the Statute.7 Accordingly, these appeal proceedings should be discontinued and Israel’s Suspension Request be rejected while the proceedings before the Pre-Trial Chamber with respect to the same Decision follow their course.8

II. SUBMISSIONS

3. Israel’s Appeal should be dismissed in limine and the appeal proceedings discontinued.9 The Appeal does not satisfy the conditions of article 82(1)(a). Furthermore, as noted, Israel has simultaneously filed before the Pre-Trial Chamber an application for leave to appeal the Decision under article 82(1)(d). If this were to be granted, it would result in an appeal against the same Decision that is the subject of the present proceedings. The Prosecution respectfully submits that the Pre-Trial Chamber is, at this juncture, the proper forum to address Israel’s challenge against the Decision.

A. The Decision is not appealable under article 82(1)(a)
4. Israel’s purported basis for its Appeal is article 82(1)(a) of the Statute, which provides: “Either party may appeal […] [a] decision with respect to […] admissibility”. Yet, the Decision is not a “decision with respect to […] admissibility” under article 82(1)(a) of the Statute. It “did not consist of, nor was it based upon, a ruling on admissibility which could be appealed under article 82(1)(a)”.10

5. As the Appeals Chamber held in Comoros and in Kenya, there are “strict conditions for appeals of ‘decisions with respect to […] admissibility’ under article 82(1)(a) of the Statute, requiring that such decisions consist of or are based on a ruling that a case is admissible or inadmissible.”11 Like in Comoros and Kenya, the Decision does not meet these conditions.12 This is because “the operative part of the Impugned Decision did not pertain directly to a question of the admissibility of a case”13 nor is “the Impugned Decision […] by its nature a decision determining admissibility”.14

6. Indeed, the operative part of the Decision does not assess whether, pursuant to article 17 of the Statute, Israel is investigating and/or prosecuting the same patterns, criminality and category of persons as the Prosecution, nor whether the cases are of sufficient gravity.15 Instead, the Decision addressed Israel’s multiple complaints regarding the Prosecution’s investigation and ultimately rejected Israel’s request for an order to the Prosecution to give a further article 18(1) notice and a stay of the proceedings pending such notice. The Pre-Trial Chamber did not (and could not) assess the admissibility of potential cases because Israel had not requested the deferral of the situation under article 18(1) of the Statute.16 Consequently, as the Chamber noted, in circumstances “[w]here 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”,17 as it lawfully did in this situation. The Chamber further noted that States, including Israel, may raise issues of admissibility for cases brought by the Prosecution within the terms of article 19(2)(b) of the Statute.18

7. Nor does the jurisprudence relied upon by Israel assist it. The Ntaganda and Yekatom appeals are distinguishable from the present case because both chambers had made an admissibility determination pursuant to article 17.

8. In Ntaganda, the Prosecution appealed the Pre-Trial Chamber’s finding that the case against Mr Ntaganda was inadmissible (due to its purported insufficient gravity under article 17(1)(d)), which resulted in the Chamber’s decision not to issue an arrest warrant against Mr Ntaganda.19 By contrast, in the present Decision, the Pre-Trial Chamber made no such admissibility (gravity) determination that can be directly appealed.20

9. Likewise, in Yekatom, the Trial Chamber found that “the CAR authorities, […], are presently inactive insofar as Mr Yekatom’s Case is concerned [and f]or this reason alone, […], the Chamber is of the view that the case against Mr Yekatom is admissible”.21 Again, this Chamber made no such determination of admissibility in the Decision.22

10. In line with the Court’s consistent jurisprudence,23 Israel’s Appeal should be dismissed in limine and the appeal proceedings discontinued.

B. The Suspension Request fails as it depends on the admissibility of the appeal
11. Since Israel’s Appeal is inadmissible, it follows that the request for suspensive effect falls away. Israel’s Suspension Request should thus also be rejected in limine. In any event, there is no legal basis to suspend the arrest warrants issued by the Pre-Trial Chamber.24

12. Should the Appeals Chamber wish to receive further submissions on the admissibility of the Appeal and/or Israel’s Suspension Request, the Prosecution stands ready to provide them.

III. RELIEF REQUESTED
13. For these reasons, Israel’s Appeal should be dismissed in limine…”

"I. INTRODUCTION

1. On 27 November 2024, Israel filed a direct appeal before the Appeals Chamber under article 82(1)(a) of the Statute (“Appeal”)1 against Pre-Trial Chamber I’s “Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute” (“Decision”).2 Simultaneously, “out of an abundance of caution, and in order to preserve all of its procedural rights”,3 Israel also filed an application for leave to appeal before Pre-Trial Chamber I under article 82(1)(d) of the Statute against the same Decision (“Application for Leave”).4 In its Appeal, Israel requests that the Appeals Chamber suspend the Pre-Trial Chamber’s arrest warrants against Benjamin Netanyahu and Yoav Gallant pursuant to article 82(3) pending the resolution of the Appeal (“Suspension Request”).5

2. The Prosecution respectfully submits that Israel’s Appeal should be dismissed in limine.6 The Decision is not a decision “with respect to jurisdiction” and it is therefore not directly appealable under article 82(1)(a) of the Statute.7 Accordingly, these appeal proceedings should be discontinued and Israel’s Suspension Request be rejected while the proceedings before PreTrial Chamber with respect to the same Decision follow their course.8

II. SUBMISSIONS

3. Israel’s Appeal should be dismissed in limine and the appeal proceedings discontinued.9 The Appeal does not satisfy the conditions of article 82(1)(a). As noted, Israel has simultaneously filed a request for leave to appeal under article 82(1)(d) against the Decision before the Pre-Trial Chamber. If this were to be granted, it would result in an appeal against the same Decision that is the subject of the present proceedings. The Prosecution respectfully submits that the Pre-Trial Chamber is, at this juncture, the proper forum to address Israel’s challenge against the Decision.

A. The Decision is not appealable under article 82(1)(a)
4. Israel’s purported basis for its Appeal is article 82(1)(a) of the Statute, which provides: “Either party may appeal […] [a] decision with respect to jurisdiction […]”.10 Yet the Decision is not a “decision with respect to jurisdiction” under article 82(1)(a) of the Statute.

5. In the Decision, Pre-Trial Chamber I precisely identified the issue before it: “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.”11 Answering this question in the negative, because “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 summons”,12 the Chamber rejected Israel’s challenge as premature.13

6. A decision that a challenge is premature is not a “decision with respect to jurisdiction” within the terms of article 82(1)(a) of the Statute. Rather, as the Appeals Chamber has held, this phrase means “that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court.”14

7. The operative part of the Decision does not determine any aspect of jurisdiction.15 Specifically, it does not determine subject matter jurisdiction or jurisdiction over persons; it does not determine territorial jurisdiction or temporal jurisdiction.16 Rather, the operative part of the Decision is procedural. The Decision tells Israel that it could not make a challenge to jurisdiction before the Court had taken a decision under article 58 of the Statute, and also holds that such a challenge could potentially be made once that condition was satisfied.17 In short, the Decision applied the procedural law concerning jurisdictional challenges, and did not determine jurisdiction itself.

8. In line with the Court’s consistent jurisprudence,18 Israel’s Appeal should therefore be dismissed in limine and the appeal proceedings discontinued.

B. The Suspension Request fails as it depends on the admissibility of the appeal

9. Since Israel’s Appeal is inadmissible, it follows that the request for suspensive effect falls away. Israel’s Suspension Request should thus also be rejected in limine. In any event, there is no legal basis to suspend the arrest warrants issued by the Pre-Trial Chamber.

10. Should the Appeals Chamber wish to receive further submissions on the admissibility of the appeal and/or Israel’s Suspension Request, the Prosecution stands ready to provide them.

III. RELIEF REQUESTED
11. For these reasons, Israel’s Appeal should be dismissed in limine. The Appeals Chamber should likewise dismiss Israel’s Suspension Request.”

"I. INTRODUCTION
1. On 21 November 2024, Pre-Trial Chamber I dismissed “Israel’s challenge to the jurisdiction of the Court” (“Decision”)1 on the basis that States are not entitled to challenge jurisdiction under article 19 prior to the issuance of a warrant of arrest or summons to appear.2 It also held that Israel could make such a challenge once that condition was satisfied.3 On the same day, the Chamber issued three arrest warrants in the Situation in the State of Palestine, two of them against Israeli nationals. On 27 November 2024, Israel filed a direct appeal before the Appeals Chamber under article 82(1)(a) of the Statute against the Decision (“Appeal”).4 Simultaneously, “out of an abundance of caution, and in order to preserve all of its procedural rights”,5 Israel also filed an application for leave to appeal before Pre-Trial Chamber I under article 82(1)(d) of the Statute against the same Decision (“Application for Leave”).6 On 29 November 2024, the Prosecution requested the Appeals Chamber to dismiss the Appeal in limine because it is inadmissible under article 82(1)(a) of the Statute.7

2. The Prosecution respectfully submits that Israel’s Application for Leave should be dismissed because it fails to meet the threshold conditions for granting leave to appeal set forth in article 82(1)(d) of the Statute. None of the three purported issues identified in the Application affects the fair and expeditious conduct of the proceedings nor would the Appeals Chamber’s intervention, at this juncture, materially advance the proceedings. Far from materially advancing the proceedings, granting leave to appeal the proposed issues would significantly delay the proceedings since, in the view of the Pre-Trial Chamber, Israel can now challenge the Court’s jurisdiction, and so can the suspects against whom arrest warrants have been issued. In such circumstances, the criteria of article 82(1)(d) are not met.

II. SUBMISSIONS
3.Article 82(1)(d) “requires (i) that the decision involves an issue that would significantly affect both the ‘fair’ and ‘expeditious’ conduct of the proceedings; or the outcome of the trial; and (ii) that, in the view of the Chamber, an immediate resolution by the Appeals Chamber is warranted as it may materially advance the proceedings”.8 “These requirements are cumulative and, therefore, failure to demonstrate one makes it unnecessary for the Chamber to address the others”.9

4. Chambers have emphasised the “‘limited nature of the remedy foreseen by article 82(1)(d) of the Statute’”, and highlighted that “‘[i]n the system of the Statute, interlocutory appeals are meant to be admissible only under limited and very specific circumstances”.10

5. Furthermore, the Appeals Chamber has held that an “issue” is a “an identifiable subject or topic requiring a decision for its resolution”, and the resolution of that issue must be “essential for the determination of matters arising in the judicial cause under examination”.11 The issue must “‘aris[e] from the decision’”, and not be constituted by “‘a question over which there is a mere disagreement or conflicting opinion’”.12 In addition, “[l]eave to appeal cannot be granted if the party seeking to appeal, instead of identifying appealable issues, seeks leave to litigate ex novo before the Appeals Chamber the entire decision”.13 Moreover, the mere fact that a party disagrees with the interpretation of the law is not, by itself, sufficient to warrant an appeal under article 82(1)(d).14 Likewise, “[m]aterially advancing the proceedings does not simply entail having the Appeals Chamber provide its interpretation of the relevant legal provision. If that were the case, all issues would automatically trigger an interlocutory appeal”.15

6. In its Application, Israel identifies three purported issues,16 and argues that these are “appealable issues”17 which “affect the fair and expeditious conduct of the proceedings, and immediate resolution thereof by the Appeals Chamber may materially advance the proceedings”.18 Israel does not argue that the issues impact “the outcome of the trial”.19

7. The three purported issues only reflect Israel’s disagreement with the Chamber’s interpretation of the Court’s legal framework and its processes. Yet only the third issue (whether States can challenge jurisdiction under article 19(2) prior the issuance of an article 58 decision) was dispositive in the Decision. Accordingly, the First and Second Issues are not in the circumstances essential matters for judicial determination and are therefore not “issues” for the purposes of article 82(1)(d). In any event, even if assuming arguendo that the Third Issue arises from the Decision, for the reasons developed below, none of them (including the Third Issue) significantly affects the fair and expeditious conduct of the proceedings, nor would their resolution by the Appeals Chamber at this juncture materially advance the proceedings. The Application should therefore be dismissed.

A. Israel does not discharge its burden under article 82(1)(d)
8. At the outset, the Prosecution notes that Israel has failed to discharge its burden to demonstrate that each of the purported issues affects each of the article 82(1)(d) conditions that it has chosen to address.20 Israel generally argues that leave to appeal should be granted because “there has been no substantive public adjudication of the serious jurisdictional objections raised by Israel”21 at “[t]he earliest possible resolution”.22 Yet, this sole and general argument is insufficient to satisfy each of the conditions of article 82(1)(d) that Israel has chosen to address. On this basis alone, Israel’s Application should be dismissed..."

"I. INTRODUCTION
1. On 21 November 2024, Pre-Trial Chamber I dismissed Israel’s request for an order to the Prosecution to give an article 18(1) notice (“Decision”).1 It also held that its conclusions did not impact on the ability of States, including Israel, to raise issues of admissibility for cases brought by the Prosecution under article 19(2)(b).2 On the same day, the Chamber issued three arrest warrants in the Situation in the State of Palestine, two of them against Israeli nationals. On 27 November 2024, Israel filed a direct appeal before the Appeals Chamber under article 82(1)(a) of the Statute against the Decision (“Appeal”).3 Simultaneously, “out of an abundance of caution”,4 Israel also filed an application for leave to appeal before Pre-Trial Chamber I under article 82(1)(d) of the Statute against the same Decision (“Application for Leave”).5 On 29 November 2024, the Prosecution requested the Appeals Chamber to dismiss the Appeal in limine because it is inadmissible under article 82(1)(a).6

2. The Prosecution respectfully submits that Israel’s Application for Leave should be dismissed because it fails to meet the threshold conditions for granting leave to appeal set forth in article 82(1)(d) of the Statute. None of the three purported issues identified in the Application arises from the Decision, nor do they affect the fair and expeditious conduct of the proceedings, nor would the Appeals Chamber’s intervention materially advance the proceedings. Instead, Israel simply disagrees with the Chamber’s conclusion that the Prosecution did not need to issue a new notice under article 18(1) of the Statute and the Chamber’s assessment of the relevant factors and jurisprudence, and misunderstands the Decision. This does not satisfy the threshold criteria of article 82(1)(d).

II. SUBMISSIONS
3. Article 82(1)(d) requires (i) that the decision involves an issue that would significantly affect both the ‘fair’ and ‘expeditious’ conduct of the proceedings or the outcome of the trial; and (ii) that, in the view of the Chamber, an immediate resolution by the Appeals Chamber is warranted as it may materially advance the proceedings.7 These requirements are cumulative and, therefore, failure to demonstrate one makes it unnecessary for the Chamber to address the others.8

4. Chambers have emphasised the “limited nature of the remedy foreseen by article 82(1)(d) of the Statute”, and highlighted that “[i]n the system of the Statute, interlocutory appeals are meant to be admissible only under limited and very specific circumstances”.9

5. Furthermore, the Appeals Chamber has held that an “issue” is “an identifiable subject or topic requiring a decision for its resolution”, and the resolution of that issue must be “essential for the determination of matters arising under the judicial cause under examination”.10 The issue must “‘aris[e] from the decision’”, and not be constituted by “‘a question over which there is a mere disagreement or conflicting opinion’”.11 In addition, “[l]eave to appeal cannot be granted if the party seeking to appeal, instead of identifying appealable issues, seeks leave to litigate ex novo before the Appeals Chamber the entire decision”.12 Moreover, the mere fact that a party disagrees with the interpretation of the law is not, by itself, sufficient to warrant an appeal under article 82(1)(d).13 Likewise, “[m]aterially advancing the proceedings does not simply entail having the Appeals Chamber provide its interpretation of the relevant legal provision. If that were the case, all issues would automatically trigger an interlocutory appeal”.14

6. Israel’s Application for Leave identifies three purported issues.15 For the reasons provided below, none of them satisfies the threshold for granting leave to appeal under article 82(1)(d) of the Statute. The First and Second Issues are mere disagreements with the Chamber’s conclusion not to order the Prosecution to issue a new article 18(1) notice, and its reasoning, and the Third Issue misunderstands the Decision. Moreover, none of the three purported issues significantly affects the fair and expeditious conduct of the proceedings, nor would their resolution by the Appeals Chamber materially advance the proceedings.

A. Israel does not discharge its burden under article 82(1)(d)
7. At the outset, the Prosecution notes that Israel does not discharge its burden to demonstrate that each of the purported issues affects each of the article 82(1)(d) conditions that it has chosen to address.16

8. Israel argues that “[p]roceedings undertaken by the ICC without complying with the procedures of complementarity would be unlawful” and that “[u]nlawful proceedings could never be considered fair or expeditious”.17 Israel does not argue that the issues impact “the outcome of the trial”. With respect to the criterion that resolution by the Appeals Chamber of the issues would materially advance the proceedings, Israel argues that “[t]he earliest possible resolution of these issues is vital to the protection of the integrity of these proceedings and the Court’s processes”.18 It also refers to the “far-reaching, unpredictable and irreversible” consequences of the arrest warrants and, its view of “the reputational damage to the Court” which might result from the issue of arrest warrants for Mr Netanyahu and Mr Gallant if later established “to have been illegally issued”.19 Yet, Israel does not establish the necessary link between these general submissions and each of the specific issues proposed for appeal—it thus fails to address the criteria under article 82(1)(d) with the requisite specificity. On this basis alone, Israel’s Application should be dismissed.

9. In any event and as developed below, even if the Chamber decides to assess Israel’s arguments, the Application equally fails. First, the First and Second Issues are mere disagreements with the Chamber’s conclusion and reasoning…”

"I. INTRODUCTION
1. The issue arising in this appeal is the degree of change in the scope of a Prosecution investigation, or in the circumstances of a situation, that triggers anew the Prosecution’s obligation, under article 18 of the Statute and rule 52(1) of the Rules, to notify a State of “the acts that may constitute crimes” that it intends to investigate.1 This issue is of central importance to the operation and proper interpretation of the principle of complementarity, and ensuring that States – including States that are not party to the Rome Statute and object to its jurisdiction – have a reasonable and fair opportunity to demonstrate that they are exercising their own jurisdiction to the exclusion of that of the ICC.

2. In the Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) Notice, the Pre-Trial Chamber (“PTC”) tacitly accepted that a Prosecution investigation could change to such a degree that a new article 18(1) notification is required, but found that this threshold had not been met because “no substantial change has occurred to the parameters of the investigation” and, thus, accordingly, there was “no obligation for the Prosecution to provide a new notification.”2

3. Israel respectfully submits that this conclusion was erroneous. The purpose of article 18(1) is to give States a fair and reasonable opportunity to know the scope of the Prosecution investigation that they are expected to “sufficiently mirror.”3 This requires, as the Appeals Chamber has held, an article 18(1) notification that is “sufficiently specific,”4 not only in relation to the intended investigation by the Prosecution at the time of the notice, but also as it relates to the investigation as it may subsequently be modified or expanded. The appropriate threshold of modification for triggering such a new notification, as established by recent Appeals Chamber caselaw, is whether the “defining parameters”5 of the investigation have changed from what was communicated to the State in the previous article 18(1) notice. Those parameters did change in this situation following the events of the morning of 7 October 2023, including as reflected in: the crime types and “patterns and forms of criminality”;6 the “groups or categories”7 of alleged perpetrators, including their hierarchical “level”;8 the underlying context of the criminality suspected, including the purported nature or existence of a “State policy” to commit the alleged criminality; and two new State referrals that expressly call for the investigation of new forms of alleged criminality and referring a new and distinct situation of crisis. As a result of these changes, the 2021 article 18(1) notice was no longer “representative”9 of the alleged criminality being investigated by the Prosecution, including as reflected in the two arrest warrants that it has sought, and that were issued by the PTC.

4. The errors in the Decision are reflected in three grounds of appeal. First, the PTC erred in law in presupposing that Israel’s challenge was untimely, despite nonetheless deciding the request, whereas the legal and factual basis of the request arose no earlier than 7 October 2023. The Prosecution’s article 18(1) obligation is not static: it arises anew if, by virtue of a change in the investigation’s defining parameters, the prior notice no longer “furnish[es] the relevant States of information specific enough to give effect to their right under article 18(2) of the Statute to seek the deferral.”10

5. Second, the PTC erred in law and in fact in concluding that there has been no substantial change in the parameters of the Prosecution’s investigation. This ground comprises three suberrors: first, the PTC erred in law in asserting that the “defining parameters” standard entails limiting the OTP’s investigations to the “incidents and crimes addressed during the preliminary examination and described in the article 18 notification”; second, the PTC erred in law by conflating the standards applicable to the scope of investigations judicially authorized under article 15, with the scope of adequate notice required under article 18, which serves a fundamentally different purpose; third, the PTC failed to provide any reasoning at all, otherwise ignored, or failed to properly appreciate,11 the factors and circumstances showing that the defining parameters of the Prosecution investigation have changed.

6. Third, the PTC erred in law by providing no reasons for rejecting Israel’s argument that a new situation had arisen following two new State referrals, submitted to the Prosecutor by a total of seven states after the events of 7 October 2023, and in failing to find that such a new situation had arisen following these referrals.

7. In light of the materiality of these errors the appropriate remedy is to reverse the Decision; declare the arrest warrants issued by the PTC null and void; and remand the matter for further deliberations or, alternatively, require the OTP to provide an adequate article 18(1) notice.
…
III. SUBMISSIONS
A. First Ground of Appeal:

The PTC erred in law in asserting that the timing of Israel’s request was contrary to the “very object and purpose of the complementarity framework” 15. The PTC asserted that “[t]he 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.” Taking the start of the relevant investigation as being March 2021, the PTC started its analysis with the pronouncement that the timing of Israel’s application “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 statutory complementarity framework.”…”

"I. INTRODUCTION

1. The issues arising in this appeal are (1) the standing of specially affected States to file a jurisdiction challenge under article 19(2)(c) of the Rome Statute; and (2) the appropriate juncture for States to be permitted to do so.1 These issues are of critical importance to ensuring that the Court adheres to its jurisdictional limitations, including prior to issuing arrest warrants. Appellate clarification in relation to these issues is essential for preventing undue infringement upon the sovereign rights and interests of States, including States not party to the Statute, which may be violated by the Court’s assertion of jurisdiction with respect to their nationals or territory.

2. In its Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute (“Decision”),2 the Pre-Trial Chamber held that: (i) Israel does not have standing to file a jurisdictional challenge pursuant to article 19(2)(c) at all; and (ii) States do not have standing to file a jurisdictional challenge pursuant to article 19(2) prior to the issuance of arrest warrants. In reaching these findings, the Pre-Trial Chamber also determined that a decision on jurisdiction made by a Pre-Trial Chamber pursuant to article 19(3) that specifically reserves an issue for further consideration nonetheless operates as res judicata, thus barring future scrutiny of the issue that it reserved.

3. The significance of the Decision cannot be over-stated. The Court’s article 19(1) obligation to “satisfy itself that it has jurisdiction in any case brought before it” and the standing of States to bring challenges to the jurisdiction of the Court under article 19(2) are not mere formalities. Jurisdiction plays a critical role in defining judicial competence in order to prevent abuse of the judicial process and guarantee that courts do not exceed the carefully defined mandates entrusted to them, including when issuing arrest warrants. The Court’s legitimacy depends, in equal measure, both on the effective discharge of its mandate, and on adherence to its jurisdictional limitations. The latter is further safeguarded by sovereign States, including those that are not party to the ICC Statute, being permitted to exercise their rights under the Rome Statute to challenge the Court’s jurisdiction.

4. Israel respectfully submits that the Pre-Trial Chamber’s findings are erroneous. The specific errors of law and fact which afflict the Decision are reflected in three grounds of appeal.

A. The first ground of appeal is that the Pre-Trial Chamber erred in law in finding that Israel does not have standing to file a jurisdictional challenge pursuant to article 19(2)(c) as it is not “a State from which acceptance of jurisdiction is required under article 12”. This ground comprises three sub-errors: first, the Pre-Trial Chamber erred in law by conflating article 12(2)’s preconditions to the exercise of the Court’s jurisdiction with the legal test for standing to bring a jurisdictional challenge under article 19(2)(c); second, the Pre-Trial Chamber erred in law by providing insufficient reasons for rejecting Israel’s submissions as to its standing to file an article 19(2) challenge; and third, the Pre-Trial Chamber erred in law in reaching a decision on standing that is contrary to the object and purpose of article 19(2)(c).

B. The second ground of appeal is that the Pre-Trial Chamber erred in fact and law in rejecting Israel’s standing under article 19(2) on the basis that to find otherwise would be to override its previous article 19(3) decision which had become res judicata. This ground comprises four sub-errors: first, the Pre-Trial Chamber erred in law by applying the principle of res judicata in circumstances in which the identity of the parties to the article 19(3) and article 19(2) proceedings was not the same; second, the Pre-Trial Chamber erred in law by applying the principle of res judicata in circumstances where the previous article 19(3) decision was preliminary in nature and was not a “final judgment”; third, the Pre-Trial Chamber erred in fact and law by applying the principle of res judicata to bar a challenge arising out of the Oslo Accords premised on a previous decision which expressly did not deal with, and indeed reserved, the legal effect of the Oslo Accords on the Court’s capacity to exercise jurisdiction; and fourth, the Pre-Trial Chamber erred in law by failing to provide reasons for rejecting Israel’s submissions as to why the 2021 article 19(3) decision does not operate as a bar to Israel’s standing to bring a jurisdictional challenge under article 19(2)(c).

C. The third ground of appeal is that the Pre-Trial Chamber erred in law in finding that Israel’s filing of a jurisdictional challenge pursuant to article 19(2) was premature as it was filed prior to the issuance of arrest warrants. This ground comprises three suberrors: first, the Pre-Trial Chamber erred in finding that States may only challenge the Court’s jurisdiction in relation to a ‘particular case’ or that a case for this purpose only arises after the issuance of an arrest warrant; second, the Pre-Trial Chamber erred in law and fact by rejecting Israel’s article 19(2) jurisdictional challenge “as premature” due to the fact that “the Prosecution typically conducts the entire application process under Article 58 of the Statute ex parte”; and third, the Pre-Trial Chamber erred in law by failing to provide reasons for rejecting Israel’s submission that article 19(5) exhortation for States to bring jurisdictional challenges at the earliest opportunity provided further support for Israel’s standing to exercise prerogatives under article 19(2)(c) prior to the issuance of arrest warrants.

5. Each error materially affected3 the Decision’s outcome…”

"I. INTRODUCTION

1. Israel requests leave to reply to three specific issues raised in the “Prosecution response to Israel’s Appeal of ‘Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice’ (ICC-01/18-375).”1 None of the three issues could have been reasonably anticipated and addressed in the appeal itself.2 First, the Prosecution cites recent State referral practice of which Israel could not reasonably have been aware as of the date of the Appeal, and that had not occurred as of the date of the Impugned Decision; second, the Prosecution cites information about a series of Israeli military operations prior to October 2023 that were never mentioned in the article 18(1) notification or any related materials, or in any subsequent submissions in this litigation; and third, the Prosecution attempts to insert arguments concerning timeliness that were not adopted by, and are irrelevant to, the Pre-Trial Chamber’s reasoning concerning timeliness. As explained below, none of these arguments or information could have been reasonably anticipated and addressed in the Appeal.

2. A reply in respect of each of these unanticipated issues will assist the Appeals Chamber in its determination of this Appeal. Indeed, as the Prosecution itself submits, the scope of an article 18(1) notification and of a situation is “case-specific and fact-dependent.”3 The record should be clear as to what is contained in the article 18(1) notification to determine whether it is “representative enough” of the Prosecution’s post-7 October investigations.

3. The Prosecution’s submissions4 concerning suspensive effect should be rejected in limine. The appropriate vehicle for such submissions was its response to the Notice of Appeal. The Prosecution’s attempt to insert these submissions into the response to the appeal itself – which did not address suspensive effect – is improper and untimely.
…
III. SUBMISSIONS

8. Israel requests leave to reply on the following new issues and arguments that could not reasonably have been anticipated, and in respect of which additional submissions will assist the Appeals Chamber. The fact that leave to reply is sought in respect of three issues only, should not be taken as reflecting any agreement with the other mischaracterisations of Israel’s Appeal, or misstatements of law, contained in the Response and which are already addressed in the Appeal.

A. First New Issue: The Prosecution cites practice subsequent to the 2023 and 2024 State referrals of the Palestine situation that could not reasonably have been anticipated

9. The Response cites information and interpretations concerning referrals by States Party under article 14 of the Statute in other situations that were not available to Israel when the present litigation began, and that were not addressed in the Impugned Decision. In particular, the Prosecution relies on a State referral in the Afghanistan situation dated 28 November 2024,9 and State referrals in the Venezuela situations from September 2024 and January 2025, respectively.10 The Prosecution purports to rely on these referrals to: (i) illustrate occasions when a referral of a situation neither indicates that the parameters of an existing investigation have changed, nor that a new situation has arisen;11 and (ii) justify its non-compliance with regulation 45 of the Regulations of Court.12

10. This information, and these arguments, could not have been reasonably anticipated and addressed in Israel’s appeal. Two of these referrals post-date the Impugned Decision and could not have been, practicably, addressed in the appeal. Furthermore, these examples were not (and could not have been) addressed in the Prosecution’s response to the Article 18 Request, which was itself filed on 27 September 2024. In fact, that response addresses only “past practice” of such State referrals without, however, citing a single example of that “past practice” of not notifying the Presidency of a referral.13 Accordingly, this purported recent practice is both novel, and addresses an issue of relevance to the important question of how State referrals that may overlap with existing situations must be dealt with in accordance with the Court’s statutory framework.

11. The Prosecution’s submissions pertain to the significance of the 2023 and 2024 State referrals in the Palestine situation. In particular, Israel seeks to offer submissions demonstrating that the Prosecution’s arguments in respect of the November 2024 referral in the Afghanistan situation is misplaced. The content of that referral could, arguably, extend beyond the scope of the existing situation and/or the article 18(1) notification. This is necessarily a fact-specific inquiry, but the Prosecution’s failure to even notify the Presidency – as expressly required by regulation 45 – impedes the ability of an interested party to raise a potentially controversial issue before the judges. This recent referral is also significant given the precedential weight that he Impugned Decision places on the Afghanistan situation.14 Contrary to the Prosecution’s submissions,15 this new referral underscores the importance of not permitting the Prosecution to choose whether or not to comply with regulation 45.

12. Submissions by way of reply will assist the Chamber’s adjudication of the appeal. Israel should have the opportunity to show that the Prosecution’s reliance on these examples of State referrals is misplaced; that these referrals should have been notified to the Presidency as required by regulation 45; and that these referrals may be indicative of circumstances requiring a new article 18(1) notification.

B. Second New Issue: In order to re-define the scope of its intended investigation, the Prosecution cites information that was not part of the article 18 notification (or any previous submissions), and could not reasonably have been anticipated…”

"I. INTRODUCTION

1. Israel respectfully requests leave to reply to two specific issues raised in the “Prosecution response to Israel’s Appeal of ‘Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute’ (ICC-01/18-374)”.1 Neither of the two issues could have been reasonably anticipated and addressed in the appeal itself.2 First, the Prosecution misapplies the provisions of the Vienna Convention on the Law of Treaties (“VCLT”) regarding ordinary meaning, context, object and purpose and supplementary means of interpretation to article 19(2)(c), in a misconceived effort to justify the Chamber’s erroneous findings as to prematurity and standing, the latter of which the Prosecution also mischarecterises as obiter dictum. Second, the Prosecution recasts wholesale the Pre-Trial Chamber’s ruling as to res judicata and mischaracterises the Decision by inferring that this issue was hypothetical and therefore obiter dictum.

2. A reply in respect of each of these unanticipated issues is necessary for the adjudication of the Appeal and / or is otherwise in the interests of justice bearing in mind the principle of equality of arms. 3. The Prosecution’s submissions3 concerning suspensive effect should be rejected in limine. The appropriate vehicle for such submissions was its response to the Notice of Appeal. The Prosecution’s attempt to insert these submissions into its Response to the Appeal itself – which did not address suspensive effect – is improper and untimely.
…
III. Submissions

9. Israel requests leave to reply on the following new issues and arguments that could not reasonably have been anticipated, and in respect of which a reply is otherwise necessary for the adjudication of Israel’s appeal. The fact that leave to reply is sought in respect of two issues only, should not be taken as reflecting any agreement with the other mischaracterisations of Israel’s Appeal, or misstatements of law, contained in the Response and which are already addressed in the Appeal.

A. First New Issue: The Prosecution misapplies the provisions of the VCLT regarding ordinary meaning, context, object and purpose and supplementary means of interpretation to article 19(2)(c) in a misconceived effort to justify the Chamber’s erroneous findings as to prematurity and standing.

10. The Prosecution Response cites Articles 31 and 32 of the VCLT9 but misapplies these provisions, which are reflective of customary international law,10 in a plethora of ways. These include: (a) deriving the ordinary meaning of article 19(2) and 19(2)(c) by effectively importing into them extra-statutory language pertaining to a “case” [for article 19(2)(c)] and jurisdiction “in relation to a case” [for the introductory paragraph of article 19(2)] due to its assertion that article 19 provides for a unitary scheme for jurisdictional challenges, allowing exceptionality only for the Prosecution under article 19(3);11 and (b) adopting the facially incorrect assertion that the interpretation of article 19(2)(c) is “clear” such there was no requirement to take into account the drafting history of article 19.12

11. The Prosecution’s misapplication of the VCLT’s interpretative guidance is relevant both to the Chamber’s erroneous holding that Israel’s Article 19(2)(c) challenge was premature, and to its erroneous interpretation of Article 19(2)(c)’s standing requirements. Indeed, the Pre-Trial Chamber’s interpretation of article 19(2)(c), which is argued by the Prosecution to be underpinned by the Prosecution’s notion of a unitary scheme to article 19 (with exceptionality only for the Prosecution pursuant to article 19(3)), results in an asymmetric regime which unduly impacts on State’s sovereign rights, and does not accord with the ordinary meaning, object and purpose, or context of these provisions. Likewise, the Pre-Trial Chamber’s lack of consideration of the travaux preparatoire to article 19(2)(c) when determining standing has resulted in a procedural bar on a non-party State of the nationality of a person subject to an article 58 application being permitted to raise jurisdictional concerns via article 19(2)(c). This situation was not envisaged by the drafters of the Rome Statute. Moreover, despite the fact that Israel had expressly filed its jurisdictional challenge pursuant to article 19(2)(c), the Prosecution wrongly asserts that the Chamber’s plainly dispositive holdings on Israel’s standing under this provision were obiter,13 and therefore the Decision was not materially affected by any error in this regard.14

12. The Prosecution’s misapplication of the VCLT’s interpretative guidance is both startling and novel and could not reasonably have been anticipated by Israel in its Appeal. Indeed, consideration of the VCLT as a means of interpreting article 19(2)(c) when considering prematurity and standing was not previously raised in the first instance Article 19(2) proceedings or in the Decision. Although limited submissions as to the “object and purpose” of article 19(2) for the purposes of standing formed part of Israel’s Appeal,15 the Prosecution’s detailed analysis of article 19(2)(c) pursuant to the VCLT interpretative framework for determining both prematurity and standing is a new issue.

13. The mere fact that there have been differing judicial views as to the meaning of article 19(2) in respect of ripeness and standing, let alone varying positions on these issues between the Prosecution and Israel in these very proceedings, indicates that the interpretation of article 19(2)(c) in accordance with article 31 VCLT could be described as “leav[ing] the meaning ambiguous or obscure” (article 32(a) VCLT) and/or leads to a result which is “manifestly absurd or unreasonable” (article 32(b) VCLT)…”

"I. INTRODUCTION

1. Israel requests leave to reply to three specific issues raised in the “Prosecution response to Israel’s Appeal of ‘Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice’ (ICC-01/18-375).”1 None of the three issues could have been reasonably anticipated and addressed in the appeal itself.2 First, the Prosecution cites recent State referral practice of which Israel could not reasonably have been aware as of the date of the Appeal, and that had not occurred as of the date of the Impugned Decision; second, the Prosecution cites information about a series of Israeli military operations prior to October 2023 that were never mentioned in the article 18(1) notification or any related materials, or in any subsequent submissions in this litigation; and third, the Prosecution attempts to insert arguments concerning timeliness that were not adopted by, and are irrelevant to, the Pre-Trial Chamber’s reasoning concerning timeliness. As explained below, none of these arguments or information could have been reasonably anticipated and addressed in the Appeal.

2. A reply in respect of each of these unanticipated issues will assist the Appeals Chamber in its determination of this Appeal. Indeed, as the Prosecution itself submits, the scope of an article 18(1) notification and of a situation is “case-specific and fact-dependent.”3 The record should be clear as to what is contained in the article 18(1) notification to determine whether it is “representative enough” of the Prosecution’s post-7 October investigations.

3. The Prosecution’s submissions4 concerning suspensive effect should be rejected in limine. The appropriate vehicle for such submissions was its response to the Notice of Appeal. The Prosecution’s attempt to insert these submissions into the response to the appeal itself – which did not address suspensive effect – is improper and untimely.
…
III. SUBMISSIONS

8. Israel requests leave to reply on the following new issues and arguments that could not reasonably have been anticipated, and in respect of which additional submissions will assist the Appeals Chamber. The fact that leave to reply is sought in respect of three issues only, should not be taken as reflecting any agreement with the other mischaracterisations of Israel’s Appeal, or misstatements of law, contained in the Response and which are already addressed in the Appeal.

A. First New Issue: The Prosecution cites practice subsequent to the 2023 and 2024 State referrals of the Palestine situation that could not reasonably have been anticipated

9. The Response cites information and interpretations concerning referrals by States Party under article 14 of the Statute in other situations that were not available to Israel when the present litigation began, and that were not addressed in the Impugned Decision. In particular, the Prosecution relies on a State referral in the Afghanistan situation dated 28 November 2024,9 and State referrals in the Venezuela situations from September 2024 and January 2025, respectively.10 The Prosecution purports to rely on these referrals to: (i) illustrate occasions when a referral of a situation neither indicates that the parameters of an existing investigation have changed, nor that a new situation has arisen;11 and (ii) justify its non-compliance with regulation 45 of the Regulations of Court.12

10. This information, and these arguments, could not have been reasonably anticipated and addressed in Israel’s appeal. Two of these referrals post-date the Impugned Decision and could not have been, practicably, addressed in the appeal. Furthermore, these examples were not (and could not have been) addressed in the Prosecution’s response to the Article 18 Request, which was itself filed on 27 September 2024. In fact, that response addresses only “past practice” of such State referrals without, however, citing a single example of that “past practice” of not notifying the Presidency of a referral.13 Accordingly, this purported recent practice is both novel, and addresses an issue of relevance to the important question of how State referrals that may overlap with existing situations must be dealt with in accordance with the Court’s statutory framework.

11. The Prosecution’s submissions pertain to the significance of the 2023 and 2024 State referrals in the Palestine situation. In particular, Israel seeks to offer submissions demonstrating that the Prosecution’s arguments in respect of the November 2024 referral in the Afghanistan situation is misplaced. The content of that referral could, arguably, extend beyond the scope of the existing situation and/or the article 18(1) notification. This is necessarily a fact-specific inquiry, but the Prosecution’s failure to even notify the Presidency – as expressly required by regulation 45 – impedes the ability of an interested party to raise a potentially controversial issue before the judges. This recent referral is also significant given the precedential weight that he Impugned Decision places on the Afghanistan situation.14 Contrary to the Prosecution’s submissions,15 this new referral underscores the importance of not permitting the Prosecution to choose whether or not to comply with regulation 45.

12. Submissions by way of reply will assist the Chamber’s adjudication of the appeal. Israel should have the opportunity to show that the Prosecution’s reliance on these examples of State referrals is misplaced; that these referrals should have been notified to the Presidency as required by regulation 45; and that these referrals may be indicative of circumstances requiring a new article 18(1) notification.

B. Second New Issue: In order to re-define the scope of its intended investigation, the Prosecution cites information that was not part of the article 18 notification (or any previous submissions), and could not reasonably have been anticipated…”

"I. INTRODUCTION

1. Israel respectfully requests leave to reply to two specific issues raised in the “Prosecution response to Israel’s Appeal of ‘Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute’ (ICC-01/18-374)”.1 Neither of the two issues could have been reasonably anticipated and addressed in the appeal itself.2 First, the Prosecution misapplies the provisions of the Vienna Convention on the Law of Treaties (“VCLT”) regarding ordinary meaning, context, object and purpose and supplementary means of interpretation to article 19(2)(c), in a misconceived effort to justify the Chamber’s erroneous findings as to prematurity and standing, the latter of which the Prosecution also mischarecterises as obiter dictum. Second, the Prosecution recasts wholesale the Pre-Trial Chamber’s ruling as to res judicata and mischaracterises the Decision by inferring that this issue was hypothetical and therefore obiter dictum.

2. A reply in respect of each of these unanticipated issues is necessary for the adjudication of the Appeal and / or is otherwise in the interests of justice bearing in mind the principle of equality of arms. 3. The Prosecution’s submissions3 concerning suspensive effect should be rejected in limine. The appropriate vehicle for such submissions was its response to the Notice of Appeal. The Prosecution’s attempt to insert these submissions into its Response to the Appeal itself – which did not address suspensive effect – is improper and untimely.
…
III. Submissions

9. Israel requests leave to reply on the following new issues and arguments that could not reasonably have been anticipated, and in respect of which a reply is otherwise necessary for the adjudication of Israel’s appeal. The fact that leave to reply is sought in respect of two issues only, should not be taken as reflecting any agreement with the other mischaracterisations of Israel’s Appeal, or misstatements of law, contained in the Response and which are already addressed in the Appeal.

A. First New Issue: The Prosecution misapplies the provisions of the VCLT regarding ordinary meaning, context, object and purpose and supplementary means of interpretation to article 19(2)(c) in a misconceived effort to justify the Chamber’s erroneous findings as to prematurity and standing.

10. The Prosecution Response cites Articles 31 and 32 of the VCLT9 but misapplies these provisions, which are reflective of customary international law,10 in a plethora of ways. These include: (a) deriving the ordinary meaning of article 19(2) and 19(2)(c) by effectively importing into them extra-statutory language pertaining to a “case” [for article 19(2)(c)] and jurisdiction “in relation to a case” [for the introductory paragraph of article 19(2)] due to its assertion that article 19 provides for a unitary scheme for jurisdictional challenges, allowing exceptionality only for the Prosecution under article 19(3);11 and (b) adopting the facially incorrect assertion that the interpretation of article 19(2)(c) is “clear” such there was no requirement to take into account the drafting history of article 19.12

11. The Prosecution’s misapplication of the VCLT’s interpretative guidance is relevant both to the Chamber’s erroneous holding that Israel’s Article 19(2)(c) challenge was premature, and to its erroneous interpretation of Article 19(2)(c)’s standing requirements. Indeed, the Pre-Trial Chamber’s interpretation of article 19(2)(c), which is argued by the Prosecution to be underpinned by the Prosecution’s notion of a unitary scheme to article 19 (with exceptionality only for the Prosecution pursuant to article 19(3)), results in an asymmetric regime which unduly impacts on State’s sovereign rights, and does not accord with the ordinary meaning, object and purpose, or context of these provisions. Likewise, the Pre-Trial Chamber’s lack of consideration of the travaux preparatoire to article 19(2)(c) when determining standing has resulted in a procedural bar on a non-party State of the nationality of a person subject to an article 58 application being permitted to raise jurisdictional concerns via article 19(2)(c). This situation was not envisaged by the drafters of the Rome Statute. Moreover, despite the fact that Israel had expressly filed its jurisdictional challenge pursuant to article 19(2)(c), the Prosecution wrongly asserts that the Chamber’s plainly dispositive holdings on Israel’s standing under this provision were obiter,13 and therefore the Decision was not materially affected by any error in this regard.14

12. The Prosecution’s misapplication of the VCLT’s interpretative guidance is both startling and novel and could not reasonably have been anticipated by Israel in its Appeal. Indeed, consideration of the VCLT as a means of interpreting article 19(2)(c) when considering prematurity and standing was not previously raised in the first instance Article 19(2) proceedings or in the Decision. Although limited submissions as to the “object and purpose” of article 19(2) for the purposes of standing formed part of Israel’s Appeal,15 the Prosecution’s detailed analysis of article 19(2)(c) pursuant to the VCLT interpretative framework for determining both prematurity and standing is a new issue.

13. The mere fact that there have been differing judicial views as to the meaning of article 19(2) in respect of ripeness and standing, let alone varying positions on these issues between the Prosecution and Israel in these very proceedings, indicates that the interpretation of article 19(2)(c) in accordance with article 31 VCLT could be described as “leav[ing] the meaning ambiguous or obscure” (article 32(a) VCLT) and/or leads to a result which is “manifestly absurd or unreasonable” (article 32(b) VCLT)…”

"I. INTRODUCTION

1. Israel’s request for leave to reply to the Prosecution’s response to its appeal of the “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” (“Request”)1 should be rejected. None of the three issues that Israel identifies is a new issue arising from the Prosecution’s response that would merit a reply, let alone one that Israel could not reasonably have anticipated. Israel instead seeks to utilise a reply to supplement and elaborate on certain arguments that were already raised in its appeal. These are not grounds to justify a reply. Moreover, the proposed reply is not necessary for the Appeals Chamber’s adjudication of the matters before it in the present appeal.

2. Israel’s request to dismiss in limine the Prosecution’s submissions on suspensive effect should also be rejected.

II. Submissions

3. The Appeals Chamber has granted leave to reply in circumstances where the reply addresses new issues that could not reasonably have been anticipated, or that the Appeals Chamber considered otherwise necessary for the adjudication of the matter before it.2 Ordering a reply lies within the Appeals Chamber’s discretion.3 In line with these principles, an appellant should not be permitted to utilise a reply merely in an attempt to strengthen arguments previously advanced,4 or to repeat submissions already made in the appeal brief.5

4. Israel seeks leave to reply on the following three issues:
a. The Prosecution’s reference to recent State referral practice, which Israel submits could not reasonably have been known to it when filing its appeal6 and which had not occurred at the date of the impugned Decision (“First Issue”);7
b. The Prosecution’s reference to information about Israeli military operations prior to October 2023 (“Second Issue”);8 and
c. Israel’s claim that the Prosecution attempted “to insert arguments concerning timeliness that were not adopted by, and are irrelevant to, the Pre-Trial Chamber’s reasoning concerning timeliness” (“Third Issue”).9

5. None of these issues is new, nor beyond what Israel could reasonably have anticipated.10 Nor is the proposed reply necessary for the Appeals Chamber’s adjudication of the matters before it in this appeal.11 The Request should be rejected for the reasons elaborated below.

a. Israel could reasonably have anticipated the First Issue, which was not new
6. Israel could reasonably have anticipated that the Prosecution would refer to the practice in recent State party referrals in Afghanistan and Venezuela.12 The Prosecution cited this practice in response to Israel’s arguments concerning the alleged absence of examples where the Prosecution “has not notified the Presidency of a State referral on the basis of its own determination that there was an overlap with an existing situation”.13 Given the public nature of the referrals by six States on 28 November 2024 in the Afghanistan situation, and by Uruguay on 6 September 2024 in the Venezuela situation,14 it was foreseeable that the Prosecution would refer to them in responding to Israel’s suggestion that the Prosecution’s practice in Palestine was unprecedented and unique. In particular:
• With regard to Venezuela, Uruguay’s referral of 6 September 202415 not only pre-dated the filing of Israel’s notice of appeal and appeal brief in these proceedings, but even the filing of Israel’s original request before the Pre-Trial Chamber (of 23 September 2024);16
With regard to Afghanistan, not only was the referral (on 28 November 2024) made before the filing of Israel’s appeal brief (on 13 December 2024) but the approach of the Prosecution was explicitly outlined in a press statement of 29 November 2024.17

7. There was no reason for Israel not to have addressed these matters if it had wished to do so in its appeal.18

8. Moreover, a reply on the First Issue is not otherwise necessary for the Appeals Chamber’s adjudication of the matter on appeal.19 The Appeals Chamber is well placed to assess whether the Prosecution’s reaction to the 2023 and 2024 referrals in Palestine was consistent with its practice in other situations. Nor is it necessary for the purposes of this appeal to receive submissions on “whether the content of [the November 2024 referral in the Afghanistan situation] could, arguably, extend beyond the scope of the existing situation and/or the article 18 notification”.20 The Prosecution’s fact-specific assessment in another situation is not the subject of the present ligation in these proceedings. Further submissions from Israel on these matters will not assist the Appeals Chamber.

b. Israel could reasonably have anticipated the Second Issue, which was not new
9. Israel could reasonably have anticipated that the Prosecution would refer to Israeli military operations prior to October 2023.21 Israel had criticised the Pre-Trial Chamber’s assessment that the conduct presently at issue was “committed in the context of the same type of armed conflicts, concerning the same territories”.22 In this context, it was foreseeable that the Prosecution would refer to prior hostilities between the same parties before October 2023 in order to demonstrate the continuities with the conduct in Gaza after that date.23 There was nothing novel in such submissions, which the Prosecution had already advanced in the course of litigation before the Pre-Trial Chamber.24 Nor is it surprising that the Prosecution’s Article 18 Notification did not refer to hostilities pre-dating the Court’s temporal jurisdiction in this situation, which started on 13 June 2014.25 For these same reasons, a reply on the Second Issue is not otherwise necessary for the adjudication of the matter on appeal, and will not assist the Appeals Chamber.

c. Israel could reasonably have anticipated the Third Issue, which was not new…”

"I. INTRODUCTION

2. Israel’s request to dismiss the Prosecution’s submissions on suspensive effect in limine should also be rejected.

II. Submissions
3. The Appeals Chamber has granted leave to reply in circumstances where the reply addresses new issues that could not reasonably have been anticipated, or that the Appeals Chamber considered otherwise necessary for the adjudication of the matter before it.2 The ordering of a reply lies within the Appeals Chamber’s discretion.3 In line with these principles, an appellant should not be permitted to utilise a reply to strengthen arguments previously advanced,4 or to repeat submissions already made in the appeal brief.5

4. Israel seeks leave to reply on the following two issues:
a. The methodology required under the Vienna Convention on the Law of Treaties (“VCLT”) for the purpose of interpreting article 19(2)(c) of the Statute (“First Issue”);6 and
b. The characterisation of the Pre-Trial Chamber’s ruling on res judicata (“Second Issue”).7

5. Neither of these issues is new, nor beyond what Israel could reasonably have anticipated.8 Nor is the proposed reply necessary for the Appeals Chamber’s adjudication of the matter before it in this appeal.9 The Request should be rejected for the reasons elaborated below.

a. Israel could reasonably have anticipated the First Issue, which was not new
6. Israel could reasonably have anticipated that the Prosecution would apply the VCLT methodology to the interpretation of the Statute.10 Israel had argued that the Chamber had misinterpreted article 19(2) of the Statute in various aspects of the Decision,11 and that its view of the correct interpretation of article 19(2)(c) in particular was supported by “the object and purpose of article 19(2).”12 In this context, it was foreseeable that the Prosecution would consider whether these submissions were consistent with the VCLT.13 Israel’s view whether the Prosecution was correct or incorrect in its response does not amount to an issue that could not reasonably have been anticipated14—to the contrary, Israel’s own view of these matters is already clear from its appeal brief,15 and need not be set out again. For this same reason, a reply on the First Issue is not otherwise necessary for the adjudication of the matter on appeal, and will not assist the Appeals Chamber.

b. Israel could reasonably have anticipated the Second Issue, which was not new
7. Israel could reasonably have anticipated that the Prosecution would address the significance in the Decision of the Chamber’s reference to res judicata.16 Israel had argued that, in its view, the Chamber had erred by relying on this doctrine to reject Israel’s claim of standing under article 19(2) of the Statute.17 In this context, it was foreseeable that the Prosecution would consider whether the Chamber had reasoned in the manner claimed by Israel.18 Israel’s view whether this constituted the correct interpretation of the Decision does not amount to an issue that could not reasonably have been anticipated19—and, again, Israel’s own view of this matter is already clear and need not be set out again.20 For this same reason, a reply on the Second Issue is not otherwise necessary for the adjudication of the matter on appeal, and will not assist the Appeals Chamber.

c. Israel’s request to dismiss the Prosecution’s submissions on suspensive effect should be rejected
8. Israel submits that the “only proper vehicle” for the Prosecution to respond to Israel’s request for suspensive effect of the impugned Decision was a response to Israel’s notice of appeal—in which Israel made its request for suspensive effect21—and not the Prosecution’s response to Israel’s appeal brief.22 As such, Israel requests that the Prosecution’s submissions on this matter are dismissed in limine.23 This request should be rejected.

9. The Appeals Chamber’s general preference, as a matter of practice, that suspensive effect is raised in the notice of appeal and expeditiously decided does not entail that the Prosecution’s response in this case was out of time or procedurally improper.24 The Court’s legal texts do not set a specific or shorter deadline for such responses. In any event, the Prosecution at all times acted expeditiously and in accordance with the Court’s procedure.25 The Prosecution squarely opposed suspensive effect when it first requested the Appeals Chamber to dismiss Israel’s notice of appeal in limine,26 and further explained that it nonetheless remained ready to provide further submissions if required.27 Since the Appeals Chamber did not issue further instructions on the matter, and the appeal proceedings continued without resolution of the question, the Prosecution duly provided further submissions in response to Israel’s appeal brief.28

III. Conclusion
10. For all the reasons above, Israel’s Request for Leave to Reply should be dismissed in its entirety.”

“JUDGMENT

1. The State of Israel’s appeal against Pre-Trial Chamber I’s “Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute” is admissible under article 82(1)(a) of the Statute;

2. The State of Israel’s request for leave to reply is rejected;

3. Pre-Trial Chamber I’s “Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute” is reversed and remanded for Pre-Trial Chamber I to rule on the substance of the State of Israel’s jurisdictional challenge;

4. The State of Israel’s request for suspensive effect of two arrest warrants issued by Pre-Trial Chamber I and “any other purported exercise of jurisdiction by the Court” is dismissed as moot; and

5. The requests of the Office of the Public Counsel for Victims and the European Centre for Law and Justice are dismissed as moot.
…

II. RELEVANT PARTS OF THE IMPUGNED DECISION

25. In the Impugned Decision, the Pre-Trial Chamber rejected Israel’s argument that its acceptance of the Court’s jurisdiction is required under article 12 of the Statute, even if another State has delegated jurisdiction, as “incorrect as a matter of law”.30 The PreTrial Chamber noted that “the Court can exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine”.31 It underlined that, “[a]s 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”.32

26. The Pre-Trial Chamber further rejected “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”.33 It stressed the “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”.34 The PreTrial Chamber further stressed that Israel’s standing is not an issue, as it “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”.35

27. The Pre-Trial Chamber indicated that “[t]he 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”.36 On this point, the PreTrial Chamber determined 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 summons”.37 The Pre-Trial Chamber noted that the Prosecutor “typically conducts the entire application process under Article 58 of the Statute ex parte” and, therefore, States only become aware of the existence of the proceedings after the Court has ruled on the application, when the summons or warrant is notified or made public.38 Further, it noted that 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”.39

Determination by the Appeals Chamber

57. The Appeals Chamber observes that, besides concluding that “[a]s 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”,88 the Pre-Trial Chamber did not further elaborate as to how the existence of a basis for the exercise of the Court’s jurisdiction under article 12(2) relates, as such, to Israel’s central contention that it has standing to challenge the jurisdiction of the Court pursuant to article 19(2)(c) of the Statute. Despite the correlation between these provisions, they regulate, in principle, different matters, namely the preconditions for the exercise of the Court’s jurisdiction (article 12(2) of the Statute), and one of the mechanisms to challenge the admissibility of a case or the jurisdiction of the Court (article 19(2)(c) of the Statute). In addition, as Israel’s primary assertion is that article 19(2)(c) of the Statute permits it to challenge the jurisdiction of the Court, it was incumbent on the Pre-Trial Chamber to specifically address why, in its view, Israel is precluded from bringing such a challenge by virtue of article 12(2) of the Statute…

61. In view of the foregoing, the Appeals Chamber finds that, considered as a whole, the Impugned Decision insufficiently addresses Israel’s central contention that article 19(2)(c) of the Statute permits it to challenge the jurisdiction of the Court. Therefore, the Pre-Trial Chamber committed an error of law by failing to sufficiently direct itself to the relevant submissions brought before it in respect of the particular legal basis underpinning the challenge to the jurisdiction of the Court. 62. The Appeals Chamber considers that this error materially affects the Impugned Decision. Had the Pre-Trial Chamber had sufficient regard to the central contention before it, it would have had to directly and specifically address Israel’s standing to bring a jurisdictional challenge under article 19(2)(c) of the Statute.

64. Accordingly, the Appeals Chamber is of the view that, in light of the preceding considerations, the most appropriate course of action is to reverse the Impugned Decision and remand the matter to the Pre-Trial Chamber for it to rule on the substance of the jurisdictional challenge…”

66. The Appeals Chamber notes that Israel requests suspensive effect of two arrest warrants issued by the Pre-Trial Chamber after the Impugned Decision and “any other purported exercise of jurisdiction by the Court”.97 The Appeals Chamber notes that it has previously indicated that granting suspensive effect “would have the effect of suspending any action based on the Impugned Decision”.98 In the present case, the Appeals Chamber is not persuaded that the arrest warrants are based on, or “inextricably connected”, to the Impugned Decision.99 In effect, while the Impugned Decision was based on the Pre-Trial Chamber’s assessment of discrete aspects of the jurisdictional challenge brought by Israel, it stopped short of addressing the challenge in its entirety. Therefore, it cannot be said that the arrest warrants are based on the Impugned Decision. These warrants were rather issued separately by the Pre-Trial Chamber and they are, as such, not before the Appeals Chamber. In any event, the Appeals Chamber’s determination in this appeal is to reverse the Impugned Decision and remand the matter to the Pre-Trial Chamber for it to decide anew on the substance of the jurisdictional challenge. In that context, the Pre-Trial Chamber will also have to determine the effect, if any, of its decision on the warrants of arrest, which were issued separately from the Impugned Decision. In these circumstances, the Appeals Chamber dismisses the request for suspensive effect as moot..."

“DECISION

1. The appeal of the State of Israel is dismissed as inadmissible;

2. The request of the State of Israel for suspensive effect of arrest warrants issued by Pre-Trial Chamber I against two Israeli nationals and “any other legal acts taken by the Court based thereon” is dismissed, as moot; and

3. The request of the State of Israel for leave to reply and to reject in limine the Prosecutor’s submissions concerning suspensive effect is dismissed as moot.

RELEVANT PARTS OF THE IMPUGNED DECISION

21. The Pre-Trial Chamber rejected the Article 18 Request on the basis that “the Prosecution complied with its statutory obligations when it provided Israel and other States with the [Article 18(1)] Notification” and it was satisfied that the Article 18(1) Notification was “sufficiently specific”.23 In the view of the Pre-Trial Chamber, the Article 18(1) Notification contained all relevant information for the purposes of article 18(2) of the Statute, namely “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”.24

Determination by the Appeals Chamber

29. Article 82 of the Statute, in its relevant parts, provides as follows: 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; […]

30. The issue of what constitutes “a decision with respect to jurisdiction or admissibility”, within the meaning of article 82(1)(a) of the Statute, has been addressed by the Appeals Chamber on numerous occasions…

33. The Appeals Chamber notes that, as recalled above,45 in the Impugned Decision, the Pre-Trial Chamber found that Israel had not requested a deferral pursuant to article 18(2) of the Statute when it had the opportunity to do so.46 The Pre-Trial Chamber also rejected Israel’s argument that a new situation has arisen or that an investigation with new defining parameters has been taking place since 7 October 2023.47 The Pre-Trial Chamber concluded that, in the absence of a “new situation” or “an investigation with new defining parameters”, the Prosecutor was under no obligation 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 States to request deferral upon receipt of the notification.48 In the view of the majority of the Appeals Chamber, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, when making the aforementioned findings, the Pre-Trial Chamber did not rule on the admissibility of any potential case under article 18 of the Statute.49 In addition, the majority of the Appeals Chamber, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, notes that the operative part of the Impugned Decision does not pertain directly to a question on the admissibility of any potential case.

34. In light of the above, the majority of the Appeals Chamber, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, is satisfied that the Impugned Decision does not consist of or is based on a ruling on the admissibility of any potential case under article 18 of the Statute…

37. In light of the foregoing, having found that the Impugned Decision does not constitute a decision with respect to admissibility within the meaning of article 82(1)(a) of the Statute, the majority of the Appeals Chamber, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, dismisses the appeal as inadmissible.

39. Judge Luz del Carmen Ibáñez Carranza dissents on the basis that she considers the appeal to be admissible. Judge Ibáñez Carranza is of the view that a decision granting or denying a request under article 18 of the Statute constitutes a decision with respect to admissibility and is directly appealable under articles 18(4) and 82(1)(a) of the Statute, as it pertains to a preliminary ruling on admissibility. In relation to the merits of the appeal, Judge Ibáñez Carranza considers that the Pre-Trial Chamber committed an error of law that materially affected the Impugned Decision. In her view, a pre-trial chamber seized of a request under article 18 of the Statute, by a State that is a not a party to the Court’s treaty and has not accepted the jurisdiction of the Court, before addressing its merits is required to: (i) define the relationship between such a State and the Court, as an international organisation, so as to specify the State’s legal standing before the Court; and (ii) establish the legal basis to apply the rights and obligations arising from the Statute, the treaty that created the Court, to such a State. For these reasons, she considers that the appropriate remedy would have been to reverse the Impugned Decision and to remand the matter to the Pre-Trial Chamber for a further determination in accordance with the applicable norms of public international law, before addressing Israel’s Article 18(1) Request on the merits. Given that the Pre-Trial Chamber failed to conduct the aforementioned analysis, Judge Ibáñez Carranza is not in a position to make an assessment of Israel’s grounds of appeal on the merits. Judge Luz del Carmen Ibáñez Carranza’s full views are annexed to the present decision.

40. Judge Solomy Balungi Bossa dissents to the extent that, in her view, the decision of the Pre-Trial Chamber on whether the Prosecutor executed his obligation to provide a notice pursuant to article 18(1) of the Statute is a preliminary ruling regarding admissibility. As such, it is directly appealable before the Appeals Chamber under articles 18(4) and 82(1)(a) of the Statute. As a result, the appeal should have been found to be admissible…”

->Dissenting Opinion of Judge Luz Del Carmen Ibáñez Carranza, International Criminal Court, April 24, 2025

“I. KEY FINDINGS

i. A decision granting or denying a request under article 18 of the Statute constitutes a decision with respect to admissibility and is directly appealable under articles 18(4) and 82(1)(a) of the Statute, as it pertains to a preliminary ruling on admissibility.

ii. A pre-trial chamber seized of a request under article 18 of the Statute, by a State that is a not a party to the Court’s treaty and has not accepted the jurisdiction of the ICC, before addressing its merits is required to: (i) define the relationship between such a State and the Court, as an international organisation, so as to specify the State’s legal standing before the Court; and (ii) establish the legal basis to apply the rights and obligations arising from the Statute, the treaty that created the Court, to such a State.

II. INTRODUCTION

1. Today, the majority of the Appeals Chamber (hereinafter: “Majority ”) dismissed as inadmissible the appeal of the State of Israel (hereinafter: “Israel”).1 This appeal was directed against the decision of Pre-Trial Chamber I (hereinafter: “Pre-Trial Chamber”) on Israel’s request for an order to the Prosecutor to give a new or adjusted notice under article 18(1) of the Statute, following the events of 7 October 2023 (hereinafter: “Article 18(1) Request”2 and “Impugned Decision”3). I wish to respectfully dissent from the Majority’s decision (hereinafter: “Majority Decision”) for the reasons developed in the present opinion.

2. The Majority has decided to dismiss Israel’s appeal on the basis that the Impugned Decision is not a decision with respect to admissibility for the purposes of article 82(1)(a) of the Statute.4 I cannot agree to this conclusion. The Impugned Decision was rendered pursuant to article 18 of the Statute, which is entitled “[p]reliminary rulings regarding admissibility”. Consequently, Israel is entitled to avail itself of the automatic right to appeal under articles 18(4) and 82(1)(a) of the Statute.

3. On the merits of the appeal, I am further of the view that the primary issue arising therefrom is that the Pre-Trial Chamber failed to conduct a critical preliminary analysis before addressing Israel’s Article 18(1) Request. The Pre-Trial Chamber limited its assessment to article 18 of the Statute viewed in isolation. However, the Pre-Trial Chamber was, in the concrete circumstances, under the legal obligation to consider the position and standing of Israel, in accordance with the broader framework of public international law. In particular, the Pre-Trial Chamber should have assessed the situation of a State not party to the Statute exercising its sovereign right to interact with the Court for a specific purpose. Accordingly, the Pre-Trial Chamber should have: (i) established, in general, the legal basis of the relationship between a State not party to the Statute and the Court, in order to determine the legal standing of such a State; and (ii) specifically assessed Israel’s procedural position against the rule of customary international law of pacta tertiis nec nocent nec prosunt, as codified in article 34 of the Vienna Convention on the Law of Treaties (hereinafter: “VCLT”), and any other applicable norms of public international law.

4. In my view, the Pre-Trial Chamber committed an error of law that materially affected the Impugned Decision, primarily by failing to direct itself to the relevant rules and principles of public international law in addressing Israel’s request under article 18(1) of the Statute.

5. These determinations are intrinsically linked to Israel’s first ground of appeal, which asserts that the Pre-Trial Chamber “erred in law in presupposing that Israel’s challenge was untimely, despite nonetheless deciding the request”,5 and consequently, to the second and third grounds of appeal.6 I consider that the Pre-Trial Chamber was bound to carry out the analysis under public international law, as set out above, prior to determining that Israel’s request was untimely. As a result, I would have reversed the Impugned Decision and remanded the matter to the Pre-Trial Chamber for a renewed assessment in accordance with the applicable framework under public international law.
...

15. I respectfully disagree with the outcome of the Majority Decision, which dismisses Israel’s appeal as inadmissible. In particular, I am unable to agree with the determinations made by my colleagues in that: (i) “when making the aforementioned findings [‘that Israel had not requested a deferral pursuant to article 18(2) of the Statute when it had the opportunity to do so’ and that ‘in the absence of a “new situation” or “an investigation with new defining parameters”, the Prosecutor was under no obligation to provide a new notification to the relevant States pursuant to article 18(1) of the Statute’], Pre-Trial Chamber I did not rule on the admissibility of any potential case under article 18 of the Statute”; and (ii) “the operative part of the Impugned Decision does not pertain directly to a question on the admissibility of any potential case”.13 I consider that Israel’s appeal against the Impugned Decision is admissible under article 18(4) and article 82(1)(a) of the Statute, for the following reasons. 16. Despite its status as a State not party to the Statute, Israel submitted the Article 18(1) Request before the Pre-Trial Chamber “without prejudice to [its] status [as a State not party to the Statute], to Israel’s well-known position regarding the Court’s manifest lack of jurisdiction over the so-called ‘situation in Palestine’, as well as its rights under the Rome Statute to bring jurisdictional and/or admissibility challenges before the Court”.14…”

->Dissenting Opinion of Judge Solomy Balungi Bossa, International Criminal Court, April 24, 2025

“I. INTRODUCTION

1. This appeal arises from the decision of Pre-Trial Chamber I (hereinafter: “PreTrial Chamber”) to reject a request made by the State of Israel (hereinafter: “Israel”) for an order to the Prosecutor to give a notice pursuant to article 18(1) of the Statute (hereinafter: “Impugned Decision”).1

2. In today’s decision, the majority of the Appeals Chamber (hereinafter: “Majority”) dismisses, as inadmissible, Israel’s appeal against the Impugned Decision (hereinafter: “Majority Decision”).2 While I agree with paragraphs 21 to 25 and 30 to 31 of the Majority Decision, I dissent from the analysis and determination in paragraphs 33 and 34 of the Majority Decision.

3. In my view, the decision of the Pre-Trial Chamber on whether the Prosecutor executed his obligation to provide a notice pursuant to article 18(1) of the Statute is a preliminary ruling regarding admissibility. As such, it is directly appealable before the Appeals Chamber under articles 18(4) and 82(1)(a) of the Statute.
…

V. ANALYSIS

12. In the view of the Majority, when the Pre-Trial Chamber made the findings that “Israel had not requested a deferral pursuant to article 18(2) of the Statute when it had the opportunity to do so” and that “in the absence of a ‘new situation’ or ‘an investigation with new defining parameters’, the Prosecutor was under no obligation to provide a new notification to the relevant States pursuant to article 18(1) of the Statute”, it “did not rule on the admissibility of any potential case under article 18 of the Statute”.13 The Majority also noted that “the operative part of the Impugned Decision does not pertain directly to a question on the admissibility of any potential case”.14

13. I underscore my disagreement with the Majority Decision as, in my view, it is incorrect to refer to the exact same determinations relied upon by the Pre-Trial Chamber to rule on the merits of the request – which, by its very nature, is a preliminary ruling regarding admissibility – and use them to affirm precisely that the Impugned Decision is not a decision regarding admissibility under article 82(1)(a) of the Statute.

14. Article 18 of the Statute is meant to safeguard the well-established principle of complementarity, which is the cornerstone of the regime set out in the Rome Statute. The Court’s system is to be distinguished from the jurisdiction of earlier international tribunals, which had primacy of jurisdiction with regard to international crimes including genocide, war crimes, and crimes against humanity. The Court’s complementarity principle holds that every State has the primary responsibility to exercise its sovereign criminal jurisdiction over those responsible for international crimes specified in article 5 of the Statute.15 It is for this reason that States are given an opportunity to assert their jurisdiction first, at the preliminary stage of investigations under article 18(2) of the Statute.

15. I note that the Pre-Trial Chamber ruled on several aspects of Israel’s request. Most significantly, the Pre-Trial Chamber dismissed Israel’s argument that a new situation has arisen or that an investigation with new defining parameters has been taking place since 7 October 2023.16 On this basis, it concluded that the Prosecutor was under no obligation to provide a new notification to the relevant States pursuant to article 18(1) of the Statute.17 In the view of the Majority, when the Pre-Trial Chamber made its findings it “did not rule on the admissibility of any potential case under article 18 of the Statute”.18 I consider that this conclusion is untenable. By recalling the Pre-Trial Chamber’s findings before adopting the aforementioned conclusion, the Majority effectively concedes that the Impugned Decision concerns a question of admissibility. Indeed, considering that the Impugned Decision engages with the merits of Israel’s request under article 18(1) of the Statute, I find that it “consisted of or ‘was based on’ a ruling that a case was admissible or inadmissible”.19

16. Furthermore, in the operative part of the Impugned Decision, the Pre-Trial Chamber rejected “Israel’s request for an order to the Prosecution to give an Article 18(1) notice and staying proceedings pending such notice”.20 The Impugned Decision was, therefore, adopted pursuant to a request under article 18 of the Statute, which is entitled “Preliminary rulings regarding admissibility”.21 As a result, the Impugned Decision specifically arises from a pivotal provision explicitly enshrining an essential facet of the Court’s complementarity mechanism. The Majority overlooks this implication when concluding, without supporting reasoning, that “the operative part of the Impugned Decision does not pertain directly to a question on the admissibility of any potential case”.22 In my view, it follows from the foregoing that “the operative part of the decision itself [pertains] directly to a question on the jurisdiction of the Court or the admissibility of a case”.23

17. In addition, I am of the view that the right to appeal enshrined in article 18(4) of the Statute does not limit the subject-matter of such appeals to a decision under article 18(2) of the Statute, regarding a request by the Prosecutor to resume an investigation notwithstanding a deferral request by a State. Article 18(4) of the Statute broadly refers to “a ruling of the Pre-Trial Chamber” [emphasis added] without limitation to a decision adopted under the last sentence of article 18(2) of the Statute. This is further confirmed by the close linkages between the first two sub-paragraphs of this provision. A pre-trial chamber seized of a request under article 18(2) of the Statute must assess whether or not the domestic investigations and/or prosecutions of a State requesting a deferral sufficiently mirror the Prosecutor’s investigation.24…”

"I. INTRODUCTION

1. In light of the warrants of arrest against Mr Benjamin NETANYAHU and Mr Yoav GALLANT issued on 21 November 2024 (“Warrants”) and the Appeal Judgment of 24 April 2025,1 the Prosecution herewith provides its observations regarding the procedure that the PreTrial Chamber should follow to address any jurisdictional challenge that may be brought at this stage of the proceedings.

2. First, the Prosecution submits that the Pre-Trial Chamber should set a deadline for those with standing to bring a jurisdictional challenge in relation to the cases against NETANYAHU and GALLANT. Should there be any such challenge, the Prosecution, victims and relevant States shall be allowed to respond to and to provide observations within a set deadline, in accordance with rules 58 and 59 of the Rules.

3. Second, the Prosecution submits that the Pre-Trial Chamber should not receive or invite any observations under rule 103 of the Rules. The issues arising from the exercise of the Court’s jurisdiction in this situation have been amply briefed by more than 100 interveners in two rounds of amici curiae observations in 2020 and 2024. Further observations on the same issues would not assist the Chamber in its determination; instead, they would only generate unnecessary costs and delays while the crimes alleged in the Warrants and the suffering of the victims continue.

4. The Prosecution respectfully submits that the adoption of this procedure would ensure an expeditious resolution of any jurisdictional challenge while ensuring compliance with the Court’s legal framework and respect of the rights and interests of parties and participants.
…
III. SUBMISSIONS
9. In view of the foregoing, the Prosecution proposes the below course of action, which ensures compliance with the Court’s legal framework, respect of the rights and interests of parties and participants, as well as an efficient resolution of any jurisdictional challenge that may be brought in relation to the cases against NETANYAHU and GALLANT.

(i) Challenge under article 19(2) to be brought within a prescribed deadline

10. The Prosecution respectfully submits that, at this stage of the proceedings, following the issuance of the Warrants and in light of the Appeal Judgment of 24 April 2025, the Chamber should set an appropriate deadline for those with standing to bring a jurisdictional challenge under article 19(2) of the Statute in the cases against NETANYAHU and GALLANT.

11. At the present stage of the proceeding, that is, after the issuance of the Warrants, article 19(2) of the Statute provides the only valid avenue and specific legal basis for bringing a jurisdictional challenge with respect to the cases at hand.

12. The Prosecution recalls that on 20 September 2024, Israel already attempted to prematurely challenge the Court’s jurisdiction, under article 19(2)(c), prior to the issuance of the Warrants. In those circumstances, the Prosecution was only able to make submissions regarding Israel’s lack of standing under that provision and at that particular stage, arguing that the Challenge was premature and requesting its dismissal in limine. Even though it did not respond to the substance of Israel’s Challenge, the Prosecution offered to provide further submissions on the matter should the Pre-Trial Chamber so require.16 The Pre-Trial Chamber dismissed Israel’s Challenge as premature and no further submissions were requested.

13. Should there be any jurisdictional challenge brought within the timeframe prescribed, the Prosecution, victims and relevant States shall be allowed to submit their responses and observations in accordance with rules 58 and 59 of the Rules.17

(ii) Observations under rule 103 would not assist the Pre-Trial Chamber

14. The Prosecution further requests the Pre-Trial Chamber not to receive or invite any observations under rule 103 of the Rules. The various issues arising from the Court’s exercise of jurisdiction in this situation have been amply briefed by over 100 interveners in two rounds of amici curiae processes held in 2020 and 2024. Further submissions on the same matters would be repetitive and not capable of assisting the Chamber in its determination.18 Rather, they would generate unnecessary cost and delays, while the crimes alleged in the Warrants continue to be committed and the number of casualties increase every day.

IV. RELIEF REQUESTED

15. In light of the foregoing, the Prosecution respectfully requests the Pre-Trial Chamber:
• to set a deadline for those with standing to bring a jurisdictional challenge in relation to the specific cases against NETANYAHU and GALLANT. The Prosecution, victims and relevant States shall be allowed to respond and to provide observations on any challenges made, in accordance with rules 58 and 59 of the Rules; and
• not to invite or receive any observations under rule 103 of the Rules.”

"I. INTRODUCTION

1.Israel requests that the Pre-Trial Chamber, pursuant to article 58(4), order that the arrest warrants issued against Prime Minister Benjamin Netanyahu (“Mr Netanyahu”) and Former Minister of Defence Yoav Gallant (“Mr Gallant”) be withdrawn or vacated.1

2. Articles 19(1) and 58(1) of the Statute require a Pre-Trial Chamber to be “satisfied” that alleged acts that are the basis of an arrest warrant fall within the Court’s jurisdiction. This “prerequisite of a warrant of arrest” was absent to begin with, a situation now made clear following the Appeals Chamber’s Judgment reversing the Pre-Trial Chamber’s decision on Israel’s jurisdictional challenge. Unless and until the Pre-Trial Chamber has “rule[d] on the substance of the jurisdictional challenge”,2 as now remanded by the Appeals Chamber, the prerequisite jurisdictional finding does not exist. It follows that the arrest warrants issued on 21 November 2024 must be withdrawn or vacated pending the Pre-Trial Chamber’s determination of Israel’s jurisdictional challenge.

3. Failure to withdraw or vacate the arrest warrants pending the necessary jurisdictional ruling not only risks depriving two individuals of their liberty on an unlawful basis, it constitutes an ongoing infringement upon Israel’s sovereign rights and also places the Court in the position of inducing States to violate their international law obligations to Israel by executing such a warrant. The mere issuance of arrest warrants where, as here, these considerations are engaged is an internationally wrongful act on the part of the Court. For these reasons, even more scrupulous compliance with the Court’s own statutory requirement that no arrest warrant be issued without a prerequisite jurisdictional finding is needed.

4. Israel additionally reiterates its previous request that article 19(7) apply for the duration of the Pre-Trial Chamber’s adjudication of Israel’s jurisdictional challenge, requiring the Prosecutor to suspend its investigations into the Situation until the Pre-Trial Chamber’s determination on the issue.

5. Finally, Israel opposes the Prosecution’s unjustified request that Israel’s jurisdictional challenge be re-filed.3 The colourable purpose of that request is nothing more than to give the Prosecution the opportunity to provide submissions on the merits of the jurisdictional challenge that it chose quite deliberately not to make in its seven-page response filed just four days after Israel’s comprehensive jurisdictional challenge.4 In seeking the opportunity to supplement its submissions, the Prosecution wilfully disregards – and asks the Pre-Trial Chamber to ignore – that the existing jurisdictional challenge remains pending before the Pre-Trial Chamber following remand by the Appeals Chamber: “the Appeals Chamber’s determination in this appeal is to reverse the Impugned Decision and remand the matter to the Pre-Trial Chamber for it to decide anew on the substance of the jurisdictional challenge.”5 If the Prosecution wishes now to supplement its previous submissions, it should withdraw its current request and seek leave to make out of time supplementary submissions, which should not be lightly granted. The Prosecution had every opportunity to make those submissions in September 2024, and despite the fact that more than 70 States, NGOs and individuals provided submissions on the merits of Israel’s jurisdictional challenge, the Prosecution itself chose not to do so. The substantive issues on the merits have now – as the Prosecution itself argues – “been amply briefed.”6
…
III SUBMISSIONS
A. An Initial Determination of Jurisdiction “Is a Prerequisite for the Issuance of a Warrant of Arrest”

17. Article 19 of the Statute provides that “[t]he Court shall satisfy itself that it has jurisdiction in any case before it.” Article 58 (1) prescribes that a “Pre-Trial Chamber shall […] issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”

18. Pre-Trial Chambers of this Court have consistently held that an “initial determination” that a case falls within the Court’s jurisdiction is a “prerequisite for the issuance of a warrant of arrest”: [I]t is the view of the Chamber that an initial determination on whether the case against Bosco Ntaganda falls within the jurisdiction of the Court is a prerequisite for the issuance of a warrant of arrest for him.22 … [A]n initial determination as to whether the case against Ahmad Harun and Ali Kushayb falls within the jurisdiction of the Court is a prerequisite for the issuance of summonses to appear or warrants of arrest.23 …. [A]n initial determination as to whether the case against Mr JeanPierre Bemba falls within the jurisdiction of the Court is a prerequisite for the issue of a warrant of arrest against him.24 … The phrase “satisfy itself that it has jurisdiction” [in article 19(1)] also entails that the Court must “attain the degree of certainty” that the jurisdictional parameters set out in the Statute have been satisfied. Thus, the Chamber determination as to whether it has jurisdiction over the case against Muthaura, Kenyatta and Ali is a prerequisite for examining the Prosecutor’s Application and in turn, the issuance or not of summonses to appear against those persons pursuant to article 58 of the Statute.25

19. The “initial determination” requires, as reflected in the Muthaura et al. and Ruto et al. decisions, a “degree of certainty” relative to the issues before the decision-maker at the time of the determination. The “initial determination” requires an assessment of the material, temporal, and territorial elements of the case…”

IV. CONCLUSION AND RELIEF SOUGHT

40. Israel requests that the Pre-Trial Chamber, pursuant to article 58(4):

a. Withdraw, vacate, or declare of no force or effect the arrest warrants that it has issued against Mr Netanyahu and Mr Gallant;

b. Declare that the Prosecution must suspend its investigation into the Situation in Palestine until the Court has given its substantive ruling on Israel’s article 19 Jurisdiction Challenge;

c. Reject the Prosecution’s request for the re-filing of the jurisdictional challenge or any other request that it may make seeking leave to supplement its submissions on the merits of the jurisdictional challenge; and

d. Reject the Prosecution’s request to set deadlines for the filing of jurisdictional challenges."