Israel & the International Criminal Court

“PRE-TRIAL CHAMBER I (the ‘Chamber’) of the International Criminal Court (the ‘Court’), acting under article 82(1)(d) of the Rome Statute (the ‘Statute’), hereby decides on the State of Israel’s (‘Israel’) ‘Request for leave to appeal the “Decision on the State of Israel’s request to have arrest warrants withdrawn, vacated or declared of no force or effect and to suspend the Prosecutor’s investigation”’ (the ‘Request’).1
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II. SUBMISSIONS
13. Israel seeks permission to appeal the following issue (the ‘Issue’): Whether the Warrants against Israeli citizens could have been issued in conformity with article 19(1) of the Statute notwithstanding a pending challenge to the jurisdictional basis for its issuance; and whether [they] must, consequently, now be suspended or given no force or effect in light of the Appeals Chamber’s reversal of the Article 19(2) Decision.20

14. Israel submits that the Issue constitutes an appealable issue. It argues that the reasoning of the Chamber in the Impugned Decision is ‘incorrect’ for two reasons.21 First, Israel argues that ‘the reasoning does not discuss whether the Chamber was required, as part of its obligatory prior ascertainment of jurisdiction in the [Warrants] to have addressed the merits of the Jurisdictional Challenge.’22 According to Israel, the Appeals Chamber’s reversal of the Article 19(2) Decision means that ‘the legal basis for the [Chamber] not having addressed the substance of Israel’s Jurisdiction Challenge, which otherwise would have been pending when the [Warrants] were issued, was incorrect.’23 It follows, according to Israel, that the Chamber was retroactively placed in the position before it issued the Warrants, but this time with a pending jurisdictional challenge.24 Second, Israel submits that the substantive implications of the Appeals Chamber’s Judgment ‘are greater than acknowledged in the Impugned Decision’.25 Israel argues that the Appeals Chamber’s Judgment invalidated the Chamber’s reliance in the Warrants on the reasoning contained in the Article 19(3) Decision. According to Israel, this follows from the fact that the Appeals Chamber found that the Chamber had not sufficiently explained why it had invoked the notion of res judicata in the Article 19(2) Decision.26 Israel further submits that the Issue affects the fair and expeditious conduct of proceedings, and immediate resolution thereof may materially advance the proceedings.27
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III. APPLICABLE LAW
16. Article 82(1)(d) of the Statute provides that a party may appeal a decision that (i) involves an issue that would significantly affect both the fair and expeditious conduct of the proceedings or the outcome of the trial; but only if (ii) in the opinion of the Chamber, an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings.30 The two prongs of this test are cumulative and, therefore, failure by the party seeking leave to appeal to demonstrate one makes it unnecessary for the Chamber to address the other.31 17. An issue pursuant to article 82(1)(d) is an identifiable subject or topic requiring a decision for its resolution.32 The issue must arise from the impugned decision itself,33 and not from other decisions34 or from hypothetical concerns or abstract legal questions.35 The issue must also identify an error of fact or law, or a mix of both,36 and not merely constitute a disagreement or a conflicting opinion.37 Errors of law include misrepresentations of the law38 and insufficient reasoning,39 while errors of fact relate to deficient evidentiary analysis.40 Even if an alleged issue emanates from the impugned decision, and pertains to a legal or factual error, it would not be appealable if it is based on a mischaracterisation or misrepresentation of the impugned decision.4
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IV. DETERMINATION
20. The determinative question in the Impugned Decision was whether the Chamber’s legal and factual findings in the Warrants have been in any way affected by the Appeals Chamber’s Judgment reversing and remanding the Article 19(2) Decision…

21. In paragraph 24 of the Impugned Decision the Chamber addressed the content of the Appeals Chamber’s Judgment and determined that nothing in the Judgment suggests that the Chamber was obliged to rule on Israel’s Jurisdictional Challenge before ruling on the applications for the warrants of arrest. The Chamber noted that the Appeals Chamber declined to address the issue of timing in its Judgment, although this was one of the central points of contention in Israel’s appeal. The Chamber pointed out that, in the context of discussing appropriate relief, the Appeals Chamber explicitly noted the issuance of the Warrants and then directed the Chamber to rule on the substance of the jurisdictional challenge at the present stage of proceedings. The Chamber also observed that, had the Appeals Chamber considered that the Warrants were automatically affected by the reversal of the Article 19(2) Decision, as had been argued by Israel, it would have issued different instructions…

29. Accordingly, as stated above, the Issue does not arise from the Impugned Decision. It arises from the Article 19(2) Decision, which Israel already appealed. Israel raised the Issue before the Appeals Chamber,60 which declined to address it,61 despite being aware of the fact that the Chamber had already issued the Warrants62 and despite Israel’s explicit request to declare the Warrants null and void.63 Israel is not entitled to re-submit the same issue for a second time to the Appeals Chamber, simply because it disagrees with how the Appeals Chamber dealt with it the first time.

30. Having found that the Issue, as framed by Israel, is not an appealable issue since it does not arise from the Impugned Decision, there is no need to consider whether the other conditions of article 82(1)(d) of the Statute have been met. The Chamber therefore rejects the Request.”

“The Appeals Chamber of the International Criminal Court, In the appeal of the State of Israel against the decision of Pre-Trial Chamber I entitled “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” of 21 November 2024 (ICC-01/18-375), Having before it the “Joint Victims’ Request to submit Observations in the appeal against the « Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice » of 21 November 2024” of 15 July 2025 (ICC-01/18-459-AnxI), and the “Requête de représentants légaux de victimes de soumettre des observations dans le cadre de l’appel contre la “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” (ICC-01/18-375)” of 22 July 2025 (ICC01/18-460-AnxI),

Pursuant to article 68(3) of the Statute, Renders, by majority, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, the following

DECISION
The aforementioned requests for leave to submit observations in the current appeal are rejected.

REASONS
I. PROCEDURAL HISTORY
1. On 21 November 2024, Pre-Trial Chamber I (hereinafter: “Pre-Trial Chamber”) issued the “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” (hereinafter: “Impugned Decision”), thereby rejecting a request submitted by the State of Israel (hereinafter: “Israel”) pursuant to article 18 of the Statute.1

2. On 14 May 2025, the Pre-Trial Chamber granted Israel’s request for leave to appeal the Impugned Decision on the following issue: “[w]hether 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”.2
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7. On 17 July 2025, the Registry transmitted to the Appeals Chamber a joint request to submit observations in the appeal against the Impugned Decision, filed by three teams of legal representatives of victims (hereinafter: “LRVs” and “First Request”).8

8. On 22 July 2025, the Registry transmitted to the Appeals Chamber a second request to submit observations in the present appeal by another team of LRVs (hereinafter: “Second Request”).9

9. On 25 July 2025, Israel submitted a consolidated response to the First Request and the Second Request (hereinafter: “Israel’s Response”), requesting that both be rejected.10

II. MERITS
A. Summary of the submissions
10. In the First Request, the LRVs submit that: (i) the victims they represent satisfy the criteria to be accorded victim status under rule 85 of the Rules of Procedure and Evidence (hereinafter: “Rules”) and have previously participated in proceedings relating to the Situation in the State of Palestine (hereinafter: “Palestine Situation”) under article 68(3) of the Statute;11 (ii) the legal framework and jurisprudence of the Court envisage the participation of victims in proceedings relating to article 18 of the Statute;12 (iii) the decision of the Appeals Chamber on this appeal will directly affect the personal interests of the victims they represent;13 and (iv) it is appropriate for the victims to be permitted to participate at the current stage of the proceedings.14

11. The LRVs in the First Request further submit that, if leave is granted, their submissions will be limited to the question on which leave to appeal was granted.15 In particular, the LRVs submit that, if leave is granted, their submissions “will be to the effect that the Prosecution had no obligation to issue a new notification under article 18(1) since no new situation arose, and no substantial change occurred in the parameters of the investigation already opened, following 7 October 2023”.16

12. The LRVs in the Second Request support the First Request and seek to participate in the proceedings, arguing that they have been authorised to submit observations in the Palestine Situation.17
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B. Determination by the Appeals Chamber

14. At the outset, the Appeals Chamber notes that neither the Statute nor the Rules explicitly provide for the participation of victims in the context of proceedings related to article 18(1) of the Statute.

15. As has been previously held, victims may seek participation in “any judicial proceedings, including proceedings affecting investigations, provided their personal interests are affected by the issues arising for resolution”.19 Article 68(3) of the Statute provides as follows: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.
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21. The Appeals Chamber also notes that both Requests were filed after the briefing schedule was completed.29 The First Request was transmitted to the Appeals Chamber on 17 July 2025, one day after the Reply; and the Second Request was transmitted to the Appeals Chamber on 22 July 2025, almost one week after the Reply.30
22. For the foregoing reasons and noting the specific circumstances of the appeal, the Appeals Chamber, by majority, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, does not consider that the victims’ involvement is appropriate at the current stage of the proceedings. This notwithstanding, and recalling the important role that victims play in the proceedings before the Court, the Appeals Chamber underlines that the present decision does not preclude any future participation by victims when determined to be appropriate by the Chamber…”

• Joint Dissenting Opinion of Judge Luz Del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa on the Decision by the Appeals Chamber on victims’ requests to submit observations in the appeal against the “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” [October 2025]
  
  "Joint Dissenting Opinion of Judge Luz Del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa,”, International Criminal Court, October 17, 2025

  “I. INTRODUCTION
  1. In the Decision on victims’ requests to submit observations in the appeal against the “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice”, the majority of the Appeals Chamber (hereinafter: “Majority”) has rejected the victims’ requests (hereinafter: “Majority’s Decision”).1 For the reasons set out below,2 we respectfully disagree with both the outcome of the Majority’s Decision and its reasoning. In our view, the requests should have been granted and the victims should have been permitted to submit observations in the present appeal.

  2. At the outset, we recall that the application and interpretation of the Court’s legal framework must be consistent with internationally recognised human rights under article 21(3) of the Statute and with the Preamble of the Statute, which places the victims at the centre of international justice.3 In this context, any statutory interpretation must be done in accordance with the pro homine principle, which requires the law “to be interpreted and applied in a way that most fully and adequately protects human beings”.4

  3. We further recall that the provisions of the Court’s legal framework must not be interpreted in isolation. The Rome Statute and the Rules of Procedure and Evidence (hereinafter: “Rules”) require a systemic and holistic approach to interpretation, whereby any ambiguity or potential inconsistency must be resolved in accordance with the pro homine principle, ensuring that preference be given to the right of the person whose human right has been violated.5

  II. MERITS
  4. Pursuant to article 68(3) of the Statute, the Appeals Chamber “shall permit [the victims’] views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court” where their personal interests are affected (emphasis added). Accordingly, victims have substantive and procedural rights under the Rome Statute to participate at all stages of the proceedings, including the appellate stage, which emerge from the internationally recognised human rights of access to justice and an effective remedy.6 These principles have been consistently affirmed by numerous human rights bodies, including the Inter-American Court of Human Rights.7

  5. We agree with the Majority that the decision as to which stages of the proceedings are appropriate for allowing victims’ participation is discretionary.8 However, we disagree with the Majority’s narrow reading of rule 92 of the Rules.

  6. According to rule 92(1) of the Rules, notification to victims and their legal representatives applies “to all proceedings before the Court, except in proceedings provided for in Part 2”, to which article 18 belongs. First, it is important to note that notification constitutes only one aspect of victims’ participation in the proceedings. Second, rule 92 of the Rules is not the only provision regulating victims’ participation, and cannot be understood as precluding victims from participating in any proceeding arising under “Part 2 of the Statute”. Indeed, rules 89 to 91 of the Rules regulate other aspects of victims’ participation such as the application to participate in the proceedings, the selection of legal representatives, and the participation of legal representatives in the proceedings. None of these provisions exclude or draw a distinction with proceedings at the investigation stage. Third, under the same rule, rule 92(6) refers to the duty of the Registrar to notify victims or their legal representatives “that have participated in a certain stage of the proceedings” (emphasis added), without additional qualification.9

  7. The above rules, which regulate different aspects of victims’ participation in the proceedings, have to be read in a systemic, systematic, and holistic manner and in accordance with international human rights norms, as mandated by article 21(3) of the Statute. This, as mentioned above, requires resolving any inconsistency in light of the pro homine principle, thereby favouring the interpretation that best safeguards the human rights of the victims.10

  8. The Majority further notes that the instances allowing victims to participate at the investigation stage are those that are contemplated by the Rome Statute.11 While this is true, we recall that the Appeals Chamber has previously allowed victims to participate in appellate proceedings at the investigation stage beyond the instances expressly provided for by the Statute, thereby expanding the scope of victims’ participation at the situation stage.12 We find the distinction drawn by our colleagues between the present appeal and the decisions of the Appeals Chamber in the Situations in the Republic of the Philippines and in the Bolivarian Republic of Venezuela I, where victims were allowed a certain involvement in the appellate proceedings under article 18(2) of the Statute, to be artificial and lacking justification.13

  9. The present appeal concerns a question relating to article 18(1) of the Statute. The title of article 18 of the Statute reads “Preliminary rulings regarding admissibility” and its sub-provisions collectively regulate the various components of such admissibility rulings at the situation stage. While article 18 of the Statute does not envisage victim participation, it does not set forth a prohibition for victims to participate either. As recalled above, the Appeals Chamber has indeed allowed victims to participate in appellate proceedings under article 18(2) of the Statute. Similarly, there is no legal basis to deny their right to participate in an appeal concerning an article 18(1) notification, because a court cannot make a distinction where the law does not, as reflected in the general principle of law ubi lex non distinguit, nec nos distinguere debemus…”