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Israel’s (‘Israel’) ‘Request for leave to appeal the “Decision on the State of Israel’s request to have arrest warrants withdrawn, vacated or declared of no force or effect and to suspend the Prosecutor’s investigation”’ (the ‘Request’).1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…”

“I. INTRODUCTION
1. A Prosecutor must not, pursuant to article 42(7) of the Rome Statute, “participate in any matter in which their impartiality might reasonably be doubted on any ground”. The need for impartiality is most acute during investigations. Unlike subsequent, adversarial stages of proceedings, a Prosecutor must investigate and bring charges as an “objective truth seeker and not as a partisan lawyer.”1 Without impartiality, in appearance and in fact, a Prosecutor can neither “investigate incriminating and exonerating circumstances equally,” as expressly required by article 54(1)(a) of the Rome Statute (the ‘Statute’) (“in order to establish the truth”), nor be relied upon to make candid and even-handed submissions in seeking an arrest warrant, as is required in any ex parte proceeding.

2. Israel’s first-hand experience from its engagement with the Office of the Prosecutor (‘OTP’) in the months of April-May 2024, combined with information that has now come to light, including as apparently collected by the UN Office of Internal Oversight Services (‘OIOS’) and through abundant media reporting, indicates that the Prosecutor’s impartiality in the conduct of the investigation leading to arrest warrant applications for Prime Minister Benjamin Netanyahu and former Minister of Defense Yoav Gallant might “reasonably be doubted”2 by a “reasonable observer, properly informed.”3 That information suggests that the Prosecutor’s decision to hurriedly submit arrest warrant applications in May 2024 might have been influenced by a desire to suppress, divert or protect himself from, allegations of serious sexual misconduct.

3. The doubts concerning the Prosecutor’s impartiality do not depend in any way on the truth or falsity of the sexual misconduct allegations. What matters is whether the appearance of the Prosecutor’s impartiality in the conduct of investigations in this situation could be reasonably doubted by a reasonable observer, properly informed, based on the Prosecutor’s awareness of and reaction to those allegations. A reasonable possibility of such influence is all that is required for disqualification of a Prosecutor from a case. In the present circumstances, the Prosecutor must either be disqualified from these cases, pursuant to article 42(7) of the Statute or, as in the Venezuela Situation,4 invited to excuse himself pursuant to rule 35 of the Rules of Procedure and Evidence (the ‘Rules’).

4. Furthermore, the integrity of the arrest warrants cannot be disconnected from the involvement of a Prosecutor lacking the essential condition of impartiality, or appearance thereof. The arrest warrant applications were the vehicle by which the Prosecutor appears to have improperly advanced his personal interests. Given that the Pre-Trial Chamber was not in a position – and was not aware that it needed – to verify the impartiality or sufficiency of the Prosecutor’s investigations or ex parte submissions, its decision is likewise tainted by the absence of prosecutorial impartiality. Therefore, this Appeals Chamber should declare the arrest warrants of no force or effect as necessarily ancillary to the Prosecutor’s disqualification under article 42(7) of the Statute, and/or as part of its inherent jurisdiction and responsibility to ensure fairness at every stage of proceedings. Alternatively, the question of remedy may be remanded to the Pre-Trial Chamber, with instructions to declare that the arrest warrants have no force or effect.5

5. This motion will proceed as follows. Part II sets out the relevant facts. It first describes the State of Israel’s period of engagement with the OTP, in April-May 2024, based on Israeli officials’ first-hand experience and relevant interactions with their interlocutors. It then sets out the information that has come to light since then, in official communications and in abundant media reporting, often relying on numerous identified sources, much of which has been substantially corroborated. Part III first addresses the legal standard for assessing the Prosecutor’s impartiality, especially in respect of ex parte proceedings. It then demonstrates why the circumstances surrounding the Prosecutor’s application for arrest warrants in May 2024 give rise to the conclusion that the Prosecutor’s impartiality “might reasonably be doubted”. It further explains why, in the present circumstances, the Prosecutor must be disqualified and the arrest warrants based on the investigation under his direction must accordingly be quashed.
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29. A reasonable doubt has now arisen whether the Prosecutor was impartial in the conduct of the investigations, and in deciding to seek arrest warrants against Mr. Netanyahu and Mr. Gallant, after he had learned about the impending sexual misconduct allegations against him. This reasonable doubt arises based on the following information: (i) the words reportedly used by the Prosecutor himself to attempt to dissuade the potential complainant from coming forward with serious allegations of sexual misconduct; (ii) the abrupt cancelation of the investigative mission to Israel and Gaza replaced by intense pressure to announce the filing of a request for arrest warrants, despite substantial volumes of exculpatory material having been provided by Israel that could not have been comprehensively verified or negated by the time that the applications were filed, combined with the reported “suspicion” amongst OTP employees that the Prosecutor’s abrupt change of direction may have been influenced by the sexual misconduct allegations; and (iii) reports of other false allegations or intimidation by the Prosecutor against those perceived as making or reporting the sexual misconduct allegations. The doubts concerning the Prosecutor’s impartiality do not depend in any way on the truth or falsity of the sexual misconduct allegations…”

“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),

After deliberation, By majority, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissenting, Delivers the following JUDGMENT
Pre-Trial Chamber I’s “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” of 21 November 2024 (ICC-01/18375) is confirmed.
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IV. MERITS
32. At the outset, the Appeals Chamber recalls that the only issue on appeal is “[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 [Palestine Situation], following 7 October 2023”.41
33. The Appeals Chamber recalls that, in the past, it has declined to consider grounds of appeal or arguments that went beyond the scope of the issue with respect to which leave to appeal was granted,42 unless such arguments were “intrinsically linked” to the issue on appeal.43
34. For the reasons set out in their opinions, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissent from the findings of the majority of the Appeals Chamber with respect to the second ground of appeal and they will not address the first and third grounds of appeal. As a result, the first and third grounds of appeal are only considered by Judge Tomoko Akane, Judge Gocha Lordkipanidze, and Judge Erdenebalsuren Damdin (hereinafter: “Majority”).
A. First ground of appeal: alleged error in finding that the Prosecutor’s post-7 October 2023 investigation falls within the scope of the pre-existing investigation on the basis that it concerns the “same type of armed conflicts” and “same alleged parties to these conflicts”

35. Under this ground of appeal, Israel argues that the Pre-Trial Chamber’s conclusion that the Prosecutor’s post-7 October 2023 investigation concerns the “same type of armed conflicts” and the “same alleged parties to these conflicts” is erroneous for the following three reasons: (i) an “armed conflict” is not a “defining parameter” of the Article 18(1) Notification or the 2018 Referral; (ii) the single reference to “hostilities” in the Article 18(1) Notification is temporally limited to 2014; and (iii) the Article 18(1) Notification “impermissibly exceeds” the scope of the 2018 Referral.44
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b. Determination by the Appeals Chamber
45. At the outset, the Majority notes that Israel’s argument concerning the “timelimited set of events in Gaza in 2014” is also raised under the second sub-ground of the first ground of appeal.69 The Majority finds it appropriate to address it under that subground.

46. The Majority finds, for the reasons that follow, that Israel’s argument that neither the 2018 Referral nor the Article 18(1) Notification refers to or describes any “armed conflict” must be rejected, as it is based on an overly narrow reading of these documents in disregard of the need to assess them in keeping with the Court’s legal framework.

47. The Majority first notes that the 2018 Referral and the Article 18(1) Notification refer to various war crimes or acts that may be qualified as war crimes under the Statute. By listing the relevant legal bases, these documents invoke crimes that, from a legal viewpoint, can only be committed in the context of an armed conflict.

48. In particular, the 2018 Referral specifies that the war crimes enshrined in “[a]rticles […] 8(2)(a)(i), (ii), (iii), (iv), (vi), (vii), (b)(i), (ii), (iii), (iv), (viii), (ix), (xiii), (xvi) and (xxi) of the Rome Statute” have purportedly been committed,70 and includes more general references to the commission of alleged war crimes.71 It further lists categories of alleged crimes that may amount to, inter alia, war crimes under article 8(2)(a), (b), (c) and/or (e) of the Statute.72

49. The Article 18(1) Notification also explicitly stipulates that, in the view of the Prosecutor, there is a reasonable basis to believe that, in the context of the 2014 hostilities in Gaza, specific war crimes were committed.73 In this respect, it cites to article 8(2)(a)(i) and (iii), 8(2)(b)(iv), (viii) and (xxiv), 8(2)(c)(i), and 8(2)(e)(ii) of the Statute.74 The Article 18(1) Notification further refers to “allegations of crimes committed by members of the IDF through the use of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel”.75
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55. In view of the foregoing, the Majority is not persuaded by Israel’s argument that neither the 2018 Referral nor the Article 18(1) Notification refers to or describes any “armed conflict”. When read together and when considered against the applicable legal framework, it is clear that these documents concern crimes and conduct that, in legal terms, can only be committed in an international armed conflict (whether or not in the form of an occupation) or non-international armed conflict.
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55. In view of the foregoing, the Majority is not persuaded by Israel’s argument that neither the 2018 Referral nor the Article 18(1) Notification refers to or describes any “armed conflict”. When read together and when considered against the applicable legal framework, it is clear that these documents concern crimes and conduct that, in legal terms, can only be committed in an international armed conflict (whether or not in the form of an occupation) or non-international armed conflict.
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132. Finally, the Majority is not persuaded by Israel’s submission that the general circumstances in which the alleged criminality is said to have occurred have changed radically…”

• "CONCURRING OPINION OF JUDGE GOCHA LORDKIPANIDZE,” International Criminal Court, December 15, 2025

  “1. Whilst I agree with the Judgment rendered by the majority of the Appeals Chamber on the appeal of the State of Israel against Pre-Trial Chamber I’s “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice”, I wish to add the following considerations on the Prosecutor’s notification under article 18(1) of the Statute.

  2. In my view, the Prosecutor, in the exercise of his due diligence, should continuously assess whether the particular circumstances of a given investigation call for an updated notification under article 18(1) of the Statute to be issued. This is because such an assessment would strike a balance between two concomitant interests, on the one hand, providing a meaningful opportunity to a State to exercise its rights under article 18(2) of the Statute and, on the other hand, ensuring the progression of the Prosecutor’s investigation without unwarranted interruption in accordance with the principles set out in the Court’s jurisprudence.

  3. The assessment as to the need for an updated article 18(1) notification should be based on a careful appraisal of the relevant circumstances of a particular investigation as a whole. In this regard, two factors are especially relevant.

  4. The first factor is the lapse of time between the original article 18(1) notification and the alleged perpetration of further crimes falling within the jurisdiction of the Court that are not explicitly covered by that notification. As noted in today’s judgment, the Appeals Chamber has endorsed the interpretation that a situation of crisis for which the jurisdiction of the Court was activated “can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral”.1 While I agree with this position, I wish to emphasise that the more time lapses between the article 18(1) notification and the alleged perpetration of further crimes, the greater the need to establish a sufficient link between such crimes and the relevant situation of crisis.

  5. The second factor concerns the “patterns and forms of criminality”. As also set out in today’s judgment, the Appeals Chamber has found that the relevant enquiry for the purposes of article 18 of the Statute concerns “the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation” and that “there is no expectation at this stage of the proceedings that the Prosecutor should notify States of every act he or she intends to investigate, especially in those situations referred to the Court which cover a large number of alleged criminal acts”.2 In my view, similarly to the preceding factor, the need to assess the sufficiency of an article 18(1) notification increases when there are substantive indications that, in comparison with the parameters set out in that notification, any alleged crimes committed thereafter exhibit diverging “patterns and forms of criminality”. In this regard, I wish to note that referrals might be indicative of the existence of new patterns of criminality.

  6. Lastly, it is my view that, in the specific circumstances of the present situation, no information has been placed before the Appeals Chamber that would compel the conclusion that the Prosecutor omitted to take the aforementioned factors into account in considering whether a new situation had arisen that would require a new notification under article 18(1) of the Statute to be issued. Should the Prosecutor, in a different scenario, arrive at the conclusion that changed circumstances give rise to a new situation upon receiving one or more referrals, he would be then duty-bound to decide whether to initiate an investigation into the new situation pursuant to articles 13(c), 14 and 53 of the Statute. That would further entail that, if the Prosecutor assesses that the relevant requirements for initiating an investigation have been fulfilled, he would have to notify all States Parties and those States which would normally exercise jurisdiction over the crimes concerned, in accordance with article 18(1) of the Statute. This is without prejudice to the power of States, in accordance with articles 13(a) and 14 of the Statute, to refer a situation to the Prosecutor. 7. In order to meet the requirements set out in the letter and spirit of articles 13, 14, and 18 of the Statute, the Prosecutor shall exercise due diligence in all circumstances, as explained above. “

• "DISSENTING OPINION OF JUDGE LUZ DEL CARMEN IBÁÑEZ CARRANZA,” International Criminal Court, December 15, 2025

  “KEY FINDINGS
  i. A referral under article 14 of the Statute imposes a number of duties on the Court and gives effect to the States Parties’ prerogative to trigger the exercise of the Court’s jurisdiction over crimes under the Statute. The Prosecutor’s duty under regulation 45(1) of the Regulations of the Court to inform the Presidency of a State Party referral is one such duty and must be exercised with due diligence.
  ii. The proper administration of justice requires strict application of the relevant legal norms, respect for the principle of legality, and compliance with due process of law. A decision can only be considered reliable if it complies with these requirements. A decision needs to be issued in conformity with the procedural requirements established by the norms governing the issuance and “production” of the decision.
  iii. The judicial duty to provide a sufficiently reasoned decision requires that all decisions reflect the reasoning of the Judges in a clear, complete, and unambiguous manner. This duty serves two indispensable purposes: (i) to allow the parties to avail themselves of their right to appeal; and (ii) to enable the Appeals Chamber to exercise its appellate functions.
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  5.. I am of the view that the Pre-Trial Chamber erred in law, by failing to consider the procedure established in regulation 45 of the Regulations. I am also of the view that the Pre-Trial Chamber committed a procedural error, by failing to expressly address a relevant argument raised by Israel in its request for a new notification under article 18(1) of the Statute (hereinafter: “Article 18 Request”).9

  6. In its Article 18 Request, Israel asserts that the Prosecutor had a duty under regulation 45 of the Regulations to inform the Presidency of the two sets of referrals submitted by seven States Parties.10 Israel argued that “[t]hese referrals triggered an obligation under regulation 45 of the [Regulations] to ‘inform the Presidency in writing […]’ [and] [t]his Prosecutor appears to have failed to do so”.11 For reasons which I will develop further in this opinion, this argument is critical to the assessment of whether the applicable procedure was correctly followed in this instance. A deficient procedure may vitiate the entire process. It was therefore the Pre-Trial Chamber’s duty to address and duly reason its findings on this pertinent submission. It was an error for the PreTrial Chamber not to do so. It was also an error for the Pre-Trial Chamber not to consider the applicable law regarding the Prosecutor’s obligation to inform the Presidency upon receipt of a referral.

  7. Having found these errors under the second ground of appeal, which materially affected the Impugned Decision, I would have remanded the matter to the Pre-Trial Chamber for a new examination.

  8. Furthermore, I cannot agree with the Majority’s determination of the remaining part of the second ground of appeal.12 The Pre-Trial Chamber failed to address Israel’s argument that the two referrals submitted by two groups of States Parties in 2023 and 2024 (hereinafter: “2023 Referral” and “2024 Referral”, collectively “Referrals”)13 had given rise to a new situation. Therefore, it is not for the Appeals Chamber to determine de novo whether or not the States concerned intended their communications to the Court to constitute referrals within the meaning of article 14 of the Statute. The matter should have been remanded to the Pre-Trial Chamber.

  9. I am of the view that in the circumstances of the present situation, compliance with the referral procedure should have been assessed as a matter of priority, especially in light of the specific concerns in this regard expressed by Israel and because such compliance is directly linked to the complementarity regime.

  10. For the reasons that follow, I disagree with my colleagues’ determination and conclusion on the second ground of appeal and on the outcome of the judgment. I reiterate that the present opinion is confined to the second ground of appeal. The first and third grounds of appeal are, in my view, intrinsically linked to the second ground of appeal. However, I am unable to meaningfully address them in the present opinion because the resolution of issues arising from the second ground of appeal is a prerequisite for any determination on the other two grounds. I would be in a position to make a determination on the first and third grounds of appeal only once the issues raised under the second ground of appeal have been duly considered. Therefore, I cannot agree with the outcome of the Majority Decision.

  11. Furthermore, the issues at stake are directly linked to the principle of complementarity. This is a core feature of the Rome Statute system, with the judicial duty to comply with the guarantees of due process of law, and to the need to ensure predictability of the law and judicial certainty.

  12. I take this opportunity to reiterate my concerns about the Pre-Trial Chamber’s failure to address the legal ramifications of Israel’s non-adherence to the Statute. This matter has a bearing on the determination and conclusions made in relation to the second ground of appeal. Indeed, the issue of applicability of the Statute to non-State Parties, like Israel, and a determination of how and since when Israel was required to comply with the obligations arising from the Statute, are relevant to the question of Israel’s ability to adhere to the procedure set out in article 18 of the Statute. 13. I also wish to emphasise that nothing in the present Opinion should be understood as affecting the rights of the victims. I reaffirm my acknowledgment and solidarity with all victims of atrocious crimes in the present situation…
  VII. FINAL CONCLUSIONS
  55. For the foregoing reasons, in the second ground of appeal, I find that
  The Pre-Trial Chamber erred in failing to address and provide reasons in relation to the legal impact of the Referrals…”

• "DISSENTING OPINION OF JUDGE SOLOMY BALUNGI BOSSA,” International Criminal Court, December 15, 2025

  “1. I respectfully disagree with the decision of the majority of the Appeals Chamber (hereinafter: “Majority”) to confirm the decision of Pre-Trial Chamber I (hereinafter: “Pre-Trial Chamber”) titled “Decision on Israel’s request for an order to the Prosecution to give an Article 18(1) notice” of 21 November 2024 (hereinafter: “Impugned Decision”). In particular, I am unable to join the Majority in its conclusion on the second ground of appeal put forward by the State of Israel (hereinafter: “Israel”). In my view, the Pre-Trial Chamber erred in failing to address certain arguments that were put before it in Israel’s request for a new notice under article 18(1) of the Statute (hereinafter: “Article 18 Request)”.1 Under its second ground of appeal, Israel submits that the Pre-Trial Chamber “erred in failing to find, and giving no reasons to reject, Israel’s submission that a new Situation was triggered by referrals following 7 October 2023”.2 I consider that the Pre-Trial Chamber’s failure to duly examine the arguments raised by Israel in the Article 18 Request materially affected the Impugned Decision. As a result, I would have granted Israel’s second ground of appeal in part and remanded the matter to the Pre-Trial Chamber in order for it to properly address Israel’s arguments and to provide reasons as to the impact of those referrals on its conclusion that no new situation had arisen which could have necessitated a new notification under article 18(1) of the Statute. Having found said error, I would find it unnecessary to examine the remainder of the second ground of appeal, as well as the first and the third grounds of appeal.

  2. In today’s judgment, the Majority concedes that “the Pre-Trial Chamber did not include an explicit finding discussing the legal implications, or lack thereof”, of the two referrals submitted by two groups of States Parties in 2023 and 2024 (hereinafter: “2023 Referral” and “2024 Referral”).3 It then, however, considers that Israel’s Article 18 Request, which had led to the Impugned Decision, “focuses on the alleged changes to the ‘defining parameters’ of the situation” and that it “only relied upon the two referrals to show ‘[t]he extent of the change following 7 October 2023’”.4 On this basis, the Majority concludes that, “[g]iven the way in which Israel formulated the Article 18 Request, there was no need for the Pre-Trial Chamber to specifically address the general submission that a new situation had been constituted as a result of the 2023 Referral and the 2024 Referral”.5

  3. Like the Majority, I wish first to recall that the extent of “reasoning will not necessarily require reciting each and every factor that was before the Pre-Trial Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion”.6 In this regard, however, I also note that the Appeals Chamber has consistently held that “[t]he Statute and the Rules […] in various places emphasise the importance of sufficient reasoning in decisions of Chambers”, and that “[a] Chamber’s provision of reasons in decisions also ‘enables the Appeals Chamber to clearly understand the factual and legal basis upon which the decision was taken and thereby properly exercise its appellate functions’”.7 Unlike the Majority, I consider that, in light of this jurisprudence, Israel’s arguments concerning the 2023 Referral and the 2024 Referral should have been relevant considerations in the Pre-Trial Chamber’s determination.

  4. In its Article 18 Request, Israel averred that the referrals had a distinct legal effect, namely that they would “identify a new situation of crisis” and that they “triggered an obligation under regulation 45 of the [Regulations of the Court] to ‘inform the Presidency in writing as soon as a situation has been referred to the Prosecutor by a State Party’”.8 I note that the Impugned Decision mentions the two referrals.9 In this context, the Pre-Trial Chamber acknowledged that Israel’s request for a new notice to be provided under article 18(1) of the Statute was, in part, based on its submission that a new situation had been constituted as a result of the two referrals.10 However, the PreTrial Chamber did not make an express finding in this regard. When determining that it was “not persuaded by Israel’s submissions that ‘a new situation has arisen’, or an ‘investigation with new “defining parameters” has been taking place since 7 October 2023’”, it confined its analysis to a comparison of certain parameters of the Article 18(1) Notification and the applications for warrants of arrest submitted by the Prosecutor, together with a reference to a finding by the Appeals Chamber issued in a different appeal.11 The Pre-Trial Chamber thus omitted to expressly rule on Israel’s submission based on the aforementioned referrals.

  5. In this regard, I recall that […] while a referral by a State Party requires the Prosecutor, in principle, to initiate an investigation into the specific situation, the Prosecutor has to first make a determination, pursuant to article 53(1) of the Statute, as to whether there is, as a matter of fact, a reasonable basis to initiate an investigation into the situation. […].12

  6. Pursuant to article 18(1) of the Statute, “[w]hen […] the Prosecutor has determined that there would be a reasonable basis to commence an investigation […], the Prosecutor shall notify all States Parties and those States which […] would normally exercise jurisdiction over the crimes concerned”. A referral by a State Party with respect to an investigation that has already been initiated on the basis of another referral thus raises the question whether the procedure under article 18(1) of the Statute must be initiated. Relevant to the matter before the Pre-Trial Chamber, such a new referral also raises the question of whether a new article 18(1) notification must be issued…”