Israel & the International Criminal Court

"...Benjamin Netanyahu, Yoav Gallant

On the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel, bear criminal responsibility for  the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023:

• Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
• Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
• Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
• Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
• Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
• Persecution as a crime against humanity contrary to article 7(1)(h);
• Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas (together with other Palestinian Armed Groups) running in parallel. We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy. These crimes, in our assessment, continue to this day.

My Office submits that the evidence we have collected, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group, shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.

This occurred through the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods and then by arbitrarily restricting the transfer of essential supplies – including food and medicine – through the border crossings after they were reopened. The siege also included cutting off cross-border water pipelines from Israel to Gaza – Gazans’ principal source of clean water – for a prolonged period beginning 9 October 2023, and cutting off and hindering electricity supplies from at least 8 October 2023 until today. This took place alongside other attacks on civilians, including those queuing for food; obstruction of aid delivery by humanitarian agencies; and attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza.

My Office submits that these acts were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.

The effects of the use of starvation as a method of warfare, together with other attacks and collective punishment against the civilian population of Gaza are acute, visible and widely known, and have been confirmed by multiple witnesses interviewed by my Office, including local and international medical doctors. They include malnutrition, dehydration, profound suffering and an increasing number of deaths among the Palestinian population, including babies, other children, and women.

Famine is present in some areas of Gaza and is imminent in other areas. As UN Secretary-General António Guterres warned more than two months ago, “1.1 million people in Gaza are facing catastrophic hunger – the highest number of people ever recorded – anywhere, anytime” as a result of an “entirely manmade disaster”. Today, my Office seeks to charge two of those most responsible, NETANYAHU and GALLANT, both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.

Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.  

Since last year, in Ramallah, in Cairo, in Israel and in Rafah, I have consistently emphasised that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale. I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences. I could not have been clearer. 

As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come.

In presenting these applications for arrest warrants, my Office is acting pursuant to its mandate under the Rome Statute. On 5 February 2021, Pre-Trial Chamber I decided that the Court can exercise its criminal jurisdiction in the Situation in the State of Palestine and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. This mandate is ongoing and includes the escalation of hostilities and violence since 7 October 2023. My Office also has jurisdiction over crimes committed by nationals of States Parties and by the nationals of non-States Parties on the territory of a State Party.

Today’s applications are the outcome of an independent and impartial investigation by my Office. Guided by our obligation to investigate incriminating and exonerating evidence equally, my Office has worked painstakingly to separate claims from facts and to soberly present conclusions based on evidence to the Pre-Trial Chamber.

As an additional safeguard, I have also been grateful for the advice of a panel of experts in international law, an impartial group I convened to support the evidence review and legal analysis in relation to these arrest warrant applications. The Panel is composed of experts of immense standing in international humanitarian law and international criminal law, including  Sir Adrian Fulford PC, former Lord Justice of Appeal and former International Criminal Court Judge; Baroness Helena Kennedy KC, President of the International Bar Association’s Human Rights Institute; Elizabeth Wilmshurst CMG KC, former Deputy Legal Adviser at the UK Foreign and Commonwealth Office; Danny Friedman KC; and two of my Special Advisers – Amal Clooney and His Excellency Judge Theodor Meron CMG. This independent expert analysis has supported and strengthened the applications filed today by my Office. I have also been grateful for the contributions of a number of my other Special Advisers to this review, particularly Adama Dieng and Professor Kevin Jon Heller.

Today we once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity. Nothing can justify wilfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.

The independent judges of the International Criminal Court are the sole arbiters as to whether the necessary standard for the issuance of warrants of arrest has been met. Should they grant my applications and issue the requested warrants, I will then work closely with the Registrar in all efforts to apprehend the named individuals. I count on all States Parties to the Rome Statute to take these applications and the subsequent judicial decision with the same seriousness they have shown in other Situations, meeting their obligations under the Statute. I also stand ready to work with non-States Parties in our common pursuit of accountability.

It is critical in this moment that my Office and all parts of the Court, including its independent judges, are permitted to conduct their work with full independence and impartiality. I insist that all attempts to impede, intimidate or improperly influence the officials of this Court must cease immediately. My Office will not hesitate to act pursuant to article 70 of the Rome Statute if such conduct continues.

I remain deeply concerned about ongoing allegations and emerging evidence of international crimes occurring in Israel, Gaza and the West Bank. Our investigation continues. My Office is advancing multiple and interconnected additional lines of inquiry, including concerning reports of sexual violence during the 7 October attacks, and in relation to the large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza. I encourage those with relevant information to contact my Office and to submit information via OTP Link.

My Office will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met. I renew my call for all parties in the current conflict to comply with the law now.

I also wish to emphasise that the principle of complementarity, which is at the heart of the Rome Statute, will continue to be assessed by my Office as we take action in relation to the above-listed alleged crimes and alleged perpetrators and move forward with other lines of inquiry. Complementarity, however, requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham. It requires thorough investigations at all levels addressing the policies and actions underlying these applications.

Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, we will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.

Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my Office and the Court. This is how we will prove, tangibly, that the lives of all human beings have equal value." 

I. INTRODUCTION

1. In accordance with Pre-Trial Chamber I’s order of 9 August 2024,1 the Prosecutor files this consolidated response in the Situation in the State of Palestine to the observations of interveners, including legal representatives of victims, members of academia, private citizens, international and non-profit organisations, and States. The Prosecution requests the Chamber to decide with the utmost urgency the Prosecution’s Article 58 Applications on the basis of its submissions and the Article 19(3) Decision...

5. It is settled law that the Court has jurisdiction in this situation. On 5 February 2021, after a thorough and inclusive process triggered by the Prosecution’s article 19(3) request, this Chamber—in a different composition—held unanimously that Palestine is a State Party to the Statute and, by majority, that the Court’s jurisdiction extends over the oPt, that is, the West Bank, including East Jerusalem, and Gaza.13 It also specifically held that the Oslo Accords were not a bar to opening the Court’s investigation.14 These findings apply no less to the current proceedings, since in the present ex parte context this ruling is settled law, and therefore does not need to be revisited.

6. The Prosecutor’s announcement of his intention to make applications under article 58, initiating prosecutions against certain individuals, could not and did not alter the ex parte nature of the resulting article 58 proceedings, to which the Prosecutor is the only party. The ex parte nature of article 58 proceedings is regulated by the Court’s legal framework and accords with their limited purpose and applicable evidentiary threshold; it is unrelated to the level of classification of filings. Nor is this the first time that an ICC Prosecutor has made a public announcement. Indeed, the Prosecutor has publicly announced the filing of requests for arrest warrants or summons to appear with respect to at least 13 persons in at least four other situations—in 2008, in 2010, in 2011, and in 2022.15 Yet, in each of those cases the proceedings remained ex parte (Prosecutor only) and the Chambers issued their decisions under article 58 on the basis of the Prosecution’s submissions only and without any preceding rule 103 process. There is no reason to treat this situation differently.

7. In any event, the Oslo Accords—which should be considered an agreement between an occupying power (Israel) and a local authority (the Palestinian Liberation Organization) regulating aspects of the occupation, as foreseen by article 47 of GCIV16—are irrelevant to the Court’s jurisdiction. The Court’s jurisdiction is exclusively and exhaustively governed by article 12 of the Statute, interpreted in accordance with ordinary modes of treaty interpretation under international law and the Court’s consistent jurisprudence.

8. Furthermore, there are no “uncontested facts that render [the] case[s] clearly inadmissible,” nor is there any “ostensible cause” otherwise compelling the Chamber to assess admissibility in the current proceedings.17 As the Prosecution has concluded, and as is evident from the public record, there are no domestic proceedings at present which deal with substantially the same conduct and the same persons as the cases presented to the Chamber pursuant to article 58 of the Statute. There is no information indicating that Benjamin NETANYAHU or Yoav GALLANT, Israel’s Prime Minister and Minister of Defence, respectively, are being criminally investigated or prosecuted, and indeed the core allegations against them have simply been rejected by Israeli authorities.

9. Adhering to the Court’s settled law concerning article 58 proceedings—in which admissibility determinations are discretionary, and only to be made in exceptional cases such as when there is an “ostensible cause”—creates no prejudice either for any State with jurisdiction or for any suspect for whom an arrest warrant has been sought.18 These rights are expressly preserved by article 19(2) of the Statute, which allows for the possibility of admissibility challenges if the Chamber decides to issue an arrest warrant pursuant to article 58 of the Statute.

10. Finally, the Prosecution recalls that the Court is required to respect the internationally recognised rights of victims with regard to the conduct of its proceedings, especially the rights of victims to know the truth, to have access to justice, and to request reparations.19 This means that the Chamber must fulfil its solemn responsibility to consider and decide on the Article 58 Applications with utmost urgency. Any unjustified delay in these proceedings detrimentally affects the rights of victims.20

11. The situation in the oPt, including Gaza, is catastrophic, owing in large part to the ongoing criminality described in the Applications. As anticipated by article 58(1)(b)(iii) of the Statute, the arrest of the persons named in the Applications appears necessary “to prevent [them] from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.” This is manifestly evident in this situation where victims are “struggling with death, hunger and disease”.21 The issuance of the requested arrest warrants could avert further harm to the victims who remain in Gaza and to those who were forced to leave but continue to suffer physical and mental harm.22 The ICJ has already addressed the situation in the oPt on four separate occasions during 2024,23 and it is now for the Court to ensure that there is no delay in the pursuit of criminal accountability in the Situation in the State of Palestine..."

“I. INTRODUCTION

1. The State of Israel (“Israel”) hereby challenges, pursuant to Article 19(2)(c) of the Rome Statute (“the Statute”), the jurisdiction of the ICC (“the Court”) in the pending application concerning Benjamin Netanyahu and Yoav Gallant, or in any other investigative action on the same jurisdictional basis.1

2.The fundamental precondition to the exercise of jurisdiction enshrined in the Rome Statute – namely, that the conduct occurred on the “territory” of a State as required by Article 12(2)(a) – is not met. The act of accession by the “Government of the State of Palestine”, which was relied upon by a previous Pre-Trial Chamber in the 2021 decision on the Prosecution’s request pursuant to article 19(3) (“the 2021 Decision”),2 does not, of itself, fulfil the jurisdictional requirements that arise under Article 12(2).

3. The 2021 Decision had the effect of recognising that a non-sovereign entity may, in principle, accept the jurisdiction of the Court within the meaning of Article 12(2) of the Rome Statute. This is made clear by the Majority’s express acknowledgment that it did not need to make a determination on Palestinian statehood under international law.3 The only substantive examination of Palestinian status under international law appears in the Partly Dissenting Opinion, which observed that “Palestine” does not at present fulfil the conditions of statehood.4

4. Israel is a State not party to the Statute. Israel’s consistent and well-established position is that only sovereign States can accept the jurisdiction of the Court.5 However, if, arguendo, a non-sovereign entity could accept the jurisdiction of the Court, an inquiry into the competences that such an entity actually possesses under international law is required.

5. Jurisdiction is not a mere formality. It 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. The legitimacy of the Court depends in equal measure on the effective discharge of its mandate, and on adherence to its jurisdictional limitations.

6. In the matter under discussion, there seems to be no disagreement between Israel and the Office of the Prosecutor (“OTP” or “Prosecution”) that Article 12(2) reflects traditional grounds of criminal jurisdiction (namely, territoriality and active personality) that are inherent aspects of sovereignty, and which should be interpreted in accordance with their ordinary meaning under international law.6

7. The sovereign status of the territory relevant to the “Situation in Palestine” is, at present, indeterminate. The absence of sovereign Palestinian territory means that there is no “territory of” a State (within the meaning of Article 12(2)(a)) over which the Court may exercise its jurisdiction. To determine otherwise necessarily entails a judicial pronouncement as to sovereignty over the territory, with respect to which there are competing legal claims. Any delimitation by the Court of the territory concerned would require it to act in contravention of binding Israeli-Palestinian agreements that expressly leave such matters to direct negotiation between the Parties, and to make determinations that are wholly unsuitable for an international criminal tribunal.

8. In these unique circumstances, when sovereignty remains indeterminate pending final status negotiations, it is the Oslo Accords that establish the jurisdictional competences over the territory between the Parties in the interim period. These agreements make clear that the Palestinian authorities have no criminal jurisdiction either in law or in fact over Area C, Jerusalem and Israeli nationals – and thus cannot validly delegate such jurisdiction to the Court. Suggestions that the Palestinian authorities have plenary jurisdiction that exceeds the competences that were specifically ascribed to them in the Israeli-Palestinian bilateral agreements, are without legal foundation.

9. Accordingly, the Statute does not permit the Court to exercise jurisdiction in the cases brought by the Prosecutor against senior Israeli officials. Granting the Prosecutor’s request to issue arrest warrants would exceed the Court’s jurisdiction and would illegitimately infringe upon Israel’s rights.

10. Israel acknowledges that the lack of jurisdiction on the part of international tribunals in respect of any particular dispute does not relieve States of their duty to fulfil their international legal obligations. Israel remains deeply committed to the rule of law and to the values underpinning international criminal justice. Israel’s robust legal system has jurisdiction over alleged wrongdoing by Israeli nationals in the context of the Israeli-Palestinian conflict. Israel’s civilian and military justice systems will not hesitate, where and when necessary, to examine, investigate, prosecute and ensure accountability, including with respect to senior officials, in accordance with Israeli and international law.

11. Israel therefore respectfully requests that the Pre-Trial Chamber:

a. declare with immediate effect, pursuant to Articles 19(7) and (8) of the Statute and Rule 58 of the ICC Rules of Procedure and Evidence, that the investigation of the Prosecutor in the cases of Mr. Netanyahu and Mr. Gallant, and the proceedings before this Chamber under Article 58 of the Statute, are to be suspended until the Court has given its ruling on this challenge to jurisdiction;

b. determine that the application concerning Mr. Netanyahu and Mr. Gallant, and any investigative action on the same jurisdictional basis, are not within the Court’s jurisdiction; and, accordingly,

c. dismiss the Prosecutor’s application for arrest warrants for Mr. Netanyahu and Mr. Gallant….”

“I. INTRODUCTION

1. The State of Israel (“Israel”) requests an order from the Pre-Trial Chamber requiring the Prosecutor, pursuant to article 18(1) of the Statute of the International Criminal Court, to notify Israel of any investigation that it is now conducting, or intends to conduct, into events in and around Gaza from 7 October 2023 onwards.1

2. The Prosecution was required to provide Israel with a new or revised article 18(1) notification when the “defining parameters” of its investigation changed, as they did after 7 October 2023. The extent of the change following 7 October 2023 is reflected in two new referrals submitted by seven States that have invoked the court’s jurisdiction for the first time in respect of new crimes, new circumstances, and new potential perpetrators – a new “situation of crisis”. Whether a new situation has arisen, or the “defining parameters” of the Prosecution’s investigation within the existing situation have changed, the result is the same: a new article 18(1) notification had to be given to Israel to allow it to exercise its procedural rights under article 18(2) to “inform the Court” that it is investigating these acts.

3. The appropriate remedy is a direction by the Pre-Trial Chamber requiring the Prosecution to give Israel and other States, pursuant to article 18(1), a notification providing sufficiently specific information concerning the scope of its investigation. Pending that notification, any proceedings arising from that investigation should be stayed, including the highly-publicised requests for arrest warrants against the Prime Minister and Minister of Defence of Israel.

4. Israel is not a Party to the Rome Statute. This filing is without prejudice to that status, to Israel’s well-known position regarding the Court’s manifest lack of jurisdiction over the so-called “situation in Palestine”,2 as well as its rights under the Rome Statute to bring jurisdictional and/or admissibility challenges before the Court.

5. These legal arguments are made in a dramatic context that started with an unprecedented attack by thousands of armed Hamas terrorists on the territory of Israel. They targeted and murdered over a thousand civilians; committed widespread sexual violence against women and girls and unspeakable outrages against the living and the dead; and kidnapped and tortured hundreds of Israeli nationals – some of whom have been murdered by their captors, while others are held to the present day in appalling conditions under constant death threats, and are being used by Hamas as pawns and human shields.

6. Despite having been forced into a bloody conflict that it did not want, Israel remains a democracy endowed with an independent judiciary and deeply committed to the rule of law, including the principles of international humanitarian law. Israel does not allow impunity for crimes and has the appropriate mechanisms – some of which are in place and operating already, others of which may be put in place, as necessary – to investigate, adjudicate and ensure accountability for any alleged crimes. Israel has primary jurisdiction and is best placed to investigate allegations of the sort raised by the Prosecutor, given the access required to relevant evidence, information and persons. In line with the principle of complementarity, a proper notification under article 18(1) would allow Israel to exercise its right to assert its primary jurisdiction, and would facilitate its ability to respond to the Prosecutor in accordance with article 18(2).

7. Instead of providing Israel with an article 18(1) notification that reflects the scope of the investigation by which Israel’s own accountability efforts would be judged, the Prosecutor abruptly announced arrest warrants against the Prime Minister and Minister of Defence, based on an investigation that took the same amount of time as was required by his Office to issue arrest warrants against Hamas’s murderous leadership. This reflected disregard for the fundamental principle of complementarity, and indifference to the existence of a functioning democracy with independent legal institutions committed to the rule of law.

…

V. SUBMISSIONS

(i) A new situation has arisen since 7 October 2023, as reflected in the subsequent referrals by seven States, requiring a new article 18(1) notice

a. An investigation must fall within the scope of the “situation of crisis” as referred by the State Party

19. The meaning of the term “situation” under articles 13 and 14 of the Statute is not defined in the Statute, but was apparently adopted in contradistinction to the word “cases”.18 Regarding arrest warrants, chambers have held that “for the case at hand not to exceed the parameters defining the […] situation under investigation, the crimes […] must have occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the […] referral.”19

20. Referrals are not allowed to be wholesale or open-ended transfers of jurisdiction to the ICC. A State is not permitted to “permanently abdicate its responsibilities by referring a wholesale of present and future criminal activities comprising the whole of its territory, without any limitation whether in context or duration.”20 Specific crimes will be found to fall within the scope of a situation only when they are “sufficiently linked to the situation of crisis which was ongoing at the time of the referral and was the subject of the referral.”21 The nature of the “situation of crisis” may be illuminated by any subsequent article 18(1) notification;22 however, the Appeals Chamber has made clear that a pre-trial chamber is required to “determine[] whether the scope of the Prosecutor’s intended investigation falls within the boundaries of the Situation in relation to which the Court’s jurisdiction [w]as referred to the Prosecutor.”23 …”

“I. INTRODUCTION

1. Israel’s challenge (the “Challenge”) to the jurisdiction of the Court pursuant to article 19(2)(c) of the Statute should be dismissed in limine.1 First, the challenge is premature. In relation to each category identified in article 19(2), the entitlement to make a challenge arises only after the Chamber has issued an article 58 decision—when there is a “case”. Second, even if it were not premature, Israel has no standing to file such a challenge under article 19(2)(c). Article 19(2)(c) only confers standing upon a “State from which acceptance of jurisdiction is required under article 12” of the Statute (emphasis added). Israel is not such a State, because Israel’s acceptance of the Court’s jurisdiction is not required for the exercise of the Court’s jurisdiction in the Situation in the State of Palestine. To the contrary, as previously held by the Court in its Article 19(3) Decision, the preconditions to jurisdiction in article 12 of the Statute are satisfied by the State of Palestine’s status as a State Party to the Statute.2

2. The Prosecution respectfully requests the Chamber to rule on this motion as a matter of urgency, and to reject the Challenge in limine.3 The Prosecution stands ready to provide further submissions should the Chamber require it.

II. CONFIDENTIALITY

Pursuant to regulation 23bis(2) of the Regulations of the Court, this request is filed SECRET. The Prosecution respectfully observes that there seems to be no basis for this classification—and submits that these matters of law should be addressed in public. If the Challenge, the existence of which has been made public by Israel, is reclassified as public, this Response can follow the same classification.

III. SUBMISSIONS

4. The Chamber should dismiss Israel’s Challenge to the jurisdiction of the Court in limine. First, the Challenge is premature given that the Pre-Trial Chamber has not yet initiated the prosecution of a “case” before the Court, which is a threshold condition for a jurisdictional challenge under article 19(2). Second, even if it were not premature, Israel is not entitled to challenge the Court’s jurisdiction under article 19(2)(c), because its acceptance of the Court’s jurisdiction under article 12 is not required.

A. The Challenge is Premature
5. Israel asserts that it “has an immediate right to challenge jurisdiction under article 19 given the current state of proceedings in the Situation.”4 This is legally incorrect. Challenges under each of the three limbs of article 19(2) may be made only after a Pre-Trial Chamber has commenced the prosecution of a “case” by its decision under article 58, issuing a warrant of arrest or a summons to appear. Consequently, Israel’s challenge should be dismissed in limine because it is premature.

6. This understanding of article 19(2) follows from the text itself and its context, and is established by the Court’s case law.

7. First, the chapeau of article 19(2) explicitly provides that it applies to: “[c]hallenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court”.5 The natural reading of this phrase is that both admissibility challenges and jurisdictional challenges are permissible only in relation to a “case”. In other words, implicitly, this phrase means: “Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court [in relation to a case].” This is also consistent with the necessary implication of the condition in article 19(2)(a),6 and the express reference to a “case” in article 19(2)(b). By contrast, the only alternative potential construction of the chapeau of article 19(2)—that jurisdiction can be challenged “even where there is no such case”—is implausible in the context of the provision as a whole, including article 19(1), which expressly refers to a case.

8. Second, the broader context, particularly article 58, confirms the interpretation of article 19(2) that jurisdictional challenges may be made only once a “case” has arisen. The Court’s consistent jurisprudence has emphasised the ex parte nature of article 58 proceedings.7 To allow an interested party to challenge the Court’s jurisdiction at this stage—that is, alongside the Chamber’s article 58 deliberations and before its decision—would be inconsistent with this ex parte character. It would wrongly turn article 58 proceedings into the functional equivalent of ordinary adversarial litigation.8

9. Third, the Court’s case law has already established this interpretation of article 19(2). In its Article 19(3) Decision, the Chamber was faced with the question of whether there was a lawful basis for the Prosecutor’s request for a ruling on jurisdiction under article 19(3) prior to the existence of a specific case. The Chamber confirmed that the Prosecutor was entitled to seek a ruling on jurisdiction in relation to a situation—that is, prior to the identification of a specific case9—based on the distinct purpose of article 19(3).

10 In this respect, the Chamber treated article 19(3) as an exception to the principle otherwise applying to article 19(2). The Chamber’s reasoning a contrario is premised on the understanding that article 19(2) challenges of all kinds may be brought only once a case has arisen.

11 This position was confirmed by the Pre-Trial Chamber in Venezuela: “only ‘the third paragraph of article 19 of the Statute is not restricted to a case.”12 10. In sum, article 19(2) establishes a unitary scheme which allows for certain challenges in relation to jurisdiction and admissibility of specific cases. The key question, therefore, is when a “case” has arisen for these purposes…”

I. INTRODUCTION

1. Israel’s request for an order requiring the Prosecution to make a further notification to Israel, pursuant to article 18(1) of the Statute, concerning its investigation into events in and around Gaza from 7 October 2023 onwards, and staying proceedings pending such a notice (“Request”), should be dismissed in limine.1 Israel lacks standing to file the Request, which is without legal basis. The Request also encompasses a further attempt to challenge the jurisdiction of the Court, circumventing the requirements of article 19(2). It is yet another example of Israel’s practice of fragmented litigation, outside the mechanisms foreseen in the Rome Statute, with the risk of diverting the Court’s resources at the mercy of Israel’s tactical choices. In any event, the Request misrepresents relevant facts and misunderstands the Court’s jurisprudence, which make clear that no further article 18(1) notification is required in the Situation in the State of Palestine.

2. The Prosecution respectfully requests the Chamber to rule on this motion as a matter of urgency, and to reject the Request in limine. The Prosecution stands ready to provide further submissions, elaborating further on those herein, should this assist the Chamber...

III. SUBMISSIONS

4. The Request should be dismissed in limine because Israel lacks standing to raise these matters. It adopts a procedure unforeseen in the Statute and unnecessary to ensure the Prosecution’s compliance with the framework of article 18. In addition, and in any event, Israel misrepresents the relevant facts and misunderstands the Court’s jurisprudence, making clear that no further article 18(1) notification is required.

A. Israel has no standing to file the Request

5. Israel has no standing to file the Request, which is unforeseen in the Statute. Rather, it appears to have made this filing as a disguised further attempt to challenge the jurisdiction of the Court in circumvention of the requirements of article 19(2), and risks diverting the Court’s resources as a result of Israel’s tactical choices...

B. Israel misrepresents the facts and misinterprets the Court’s jurisprudence

22. As the Prosecution explained in its Consolidated Response to Interveners, the cases identified in the Article 58 Applications fall within the parameters of, and are in any event sufficiently linked to, the situation referred by Palestine in May 2018.28 Accordingly, the Prosecution correctly decided that it was not necessary to commence a new preliminary examination with a view to opening a new investigation, to which the notification requirement of article 18(1) would apply afresh.29

23. Israel’s submissions in this Request only underscore the correctness of the Prosecution’s approach. Israel’s argument that the Court lacks jurisdiction with regard to these Applications is based on the following errors: (i) it wrongly narrows the material scope of Palestine’s referral;30 (ii) it misunderstands the purpose of article 18 notifications;31 and (iii) it misrepresents the Court’s jurisprudence.32 Israel’s approach is thus factually and legally incorrect, for the reasons set out below.

(i) The cases described in the Article 58 Applications fall within the parameters of the situation referred to the Court by Palestine

24. First, Israel argues that Palestine’s 2018 referral is too broad (because it has no end date)33 but also too narrow (because it is purportedly limited to “settlement crimes”).34 These arguments are incorrect. The cases described in the Applications fall squarely within the parameters of the referred situation. Palestine’s emphasis on Israel’s ongoing occupation of the Occupied Palestinian Territory (“oPt”) adequately describes the events relevant to the situation. Indeed, all Palestinian territory, including Gaza, has been under occupation for almost 60 years, and this has given rise to wide-ranging allegations of article 5 crimes by different actors supporting or opposing Israel’s practices and policies. Israel’s suggestion that the Referral impermissibly “abdicate[s] [Palestine’s] responsibility for exercising jurisdiction over atrocity crimes for eternity” is unfortunate.35 In particular, since, by referring the Situation to the Court, Palestine sought accountability for the crimes arising from, and related to, Israel’s long-lasting (and unlawful) presence in the oPt.36 ..."

“PRE-TRIAL CHAMBER I (the ‘Chamber’) of the International Criminal Court (the ‘Court’) issues this decision on the ‘Abridged Request for an Order Requiring an Article 18(1) Notice, and Staying Proceedings Pending Such a Notice’ (the ‘Request’)1 by the State of Israel (‘Israel’).
…
II Determination

Consideration of the merits of the Request
10. Based on the submissions of Israel and the Prosecution, as well as the material before the Chamber, the Chamber understands that:
• On 9 March 2021, the Prosecution notified all States Parties and other States with jurisdiction, including Israel, pursuant to article 18(1) of the Statute, that it had initiated an investigation in the Situation (the ‘Notification’).14
• On 8 April 2021, Israel sent a letter to the Prosecution, indicating its ‘firm […] view that the Court manifestly lacks jurisdiction’ over the Situation; and submitting that ‘Israel’s robust legal system […] has and will continue to examine and investigate rigorously all allegations of misconduct or crimes […] and to hold to account those persons within its jurisdiction found to be responsible’ (the ‘8 April 2021 Letter’).15
• On 9 April 2021, with reference to the 8 April 2021 Letter, the Prosecution sent a letter to Israel, inter alia, requesting clarification whether it was ‘the Government of Israel’s intention […] to trigger the application of article 18(2) of the Statute, and if so, the specific domestic proceedings to which any request for deferral under article 18(2) might relate’ (the ‘Clarification Request’).16
• On 26 April 2021, the Legal Advisor of the Embassy of Israel to The Netherlands sent an email to the Prosecution, conveying that Israel: (i) ‘maintains its principled position that the Court manifestly lacks jurisdiction’ over the Situation; (ii) ‘maintains its grave reservations […] regarding the handling of this situation by the OTP’; and (iii) ‘will continue to examine and investigate rigorously all allegations of misconduct or crimes, regardless of their source, and to hold to account those responsible’ (the ‘26 April 2021 Letter’).17
• On 1 May 2024, Israel sent a letter to the Prosecution requesting it to ‘defer any investigation it may be conducting in relation to any alleged criminal acts attributed to Israeli nationals or others within Israel’s jurisdiction, in favour of Israel’s processes for review, examination, investigation and proceedings under its national legal system’ (the ‘1 May 2024 Letter’).18
• On 7 May 2024, the Prosecution responded to the 1 May 2024 Letter by stating that Israel has ‘no standing now, under the Statute, to make such an application’ given that it had ‘expressly declined to make an application for deferral of the investigation within the prescribed time limit’.19

11. In its Request, Israel inter alia submits that, in its 8 April 2021 Letter, it asserted that the Notification was not ‘sufficiently specific’ and that it reiterated this assertion in its 26 April 2021 Letter. Israel does not indicate what the consequence of its contention would be, but to the extent it intends to argue that the Notification was deficient and as such cannot have served as a notification pursuant to article 18(1) of the Statute, this argument fails. Based on the material before it, the Chamber considers that the Prosecution complied with its statutory obligations when it provided Israel and other States with the Notification. As explained by the Appeals Chamber, a notification under article 18(1) of the Statute ‘shall contain information “relevant for the purposes of article 18 paragraph 2” of the Statute’, namely: the general parameters of the situation and sufficient detail with respect to the groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, that the Prosecution intends to investigate.20 The Chamber specifically notes that the Notification included the types of alleged crimes, potential alleged perpetrators, the starting point of the relevant timeframe, as well as a reference to further relevant information, including the summary of the Prosecution’s preliminary examination findings. Therefore, the Notification was sufficiently specific.21

12. Based on the material before it, the Chamber notes that, despite the Prosecution’s Clarification Request, Israel did not proceed to request a deferral under article 18(2) of the Statute in 2021. Instead, it merely repeated its previous arguments on the Court’s alleged lack of jurisdiction and stated that it continued investigating all relevant crimes. In this regard, the Chamber recalls that, ‘[f]or a State to be successful in seeking a deferral […], it is [neither] enough for it to make a blanket statement that the Court lacks […] jurisdiction […]’;22 nor to simply assert that it is investigating or prosecuting crimes which may constitute crimes under article 5 of the Statute and that relate to the notification under article 18(1) of the Statute.23 Therefore, Israel’s 8 April 2021 Letter and 26 April 2021 Letter did not constitute a deferral request under article 18(2) of the Statute...

15. The Chamber is also not persuaded by Israel’s submissions that ‘a new situation has arisen’,24 or an ‘investigation with new “defining parameters” has been taking place since 7 October 2023’. 25 The Chamber notes that the Notification indicated that the investigation concerned alleged crimes in the context of an international armed conflict, Israel’s alleged conduct in the context of an occupation, and a non-international armed conflict between Hamas and Israel. In the applications for warrants of arrest, as also explained by the Prosecutor in his public statement at the time of filing the applications, the Prosecution alleges conduct committed in the context of the same type of armed conflicts, concerning the same territories, with the same alleged parties to these conflicts. Therefore, no substantial change has occurred to the parameters of the investigation into the situation.26 The Chamber notes that Israel’s position would effectively mean that the Prosecution’s investigation in every situation would be limited to the incidents and crimes addressed during the preliminary examination and described in the article 18 notification. Such interpretation has already been rejected by the Appeals Chamber.27 There was, and is, therefore, no obligation for the Prosecution to provide a new notification to the relevant States pursuant to article 18(1) of the Statute, and as such to provide a new one-month timeline for requests for deferral...

THE CHAMBER HEREBY, FOR THE ABOVE REASONS,...

REJECTS Israel’s request for an order to the Prosecution to give an Article 18(1) notice and staying proceedings pending such notice. …”

“PRE-TRIAL CHAMBER I (the ‘Chamber’) of the International Criminal Court (the ‘Court’) issues this decision on ‘Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute’ (the ‘Challenge’),1 submitted by the State of Israel (‘Israel’).
…
II Determination of the Chamber
Preliminary matter

10. With regard to the Leave to Reply Request, the Chamber considers that the Challenge and the Response are sufficiently clear and that the issues identified by Israel for further submissions could either have been reasonably anticipated or do not relate to matters that the Chamber requires further information on. The Leave to Reply Request is therefore rejected.

Consideration of the Challenge

11. Israel challenges the Court’s jurisdiction regarding the Prosecution’s applications for warrants of arrest against Mr Netanyahu and Mr Gallant and any other investigative action on the same jurisdictional basis.13 Israel argues that Palestine does not possess the competences required under international law to be able to delegate territorial jurisdiction to the Court.

12. In terms of standing, Israel refers to the Chamber’s holding in 2021 that issues of territorial jurisdiction may be raised by interested States based on article 19 of the Statute. Israel submits that it is a State from which acceptance of jurisdiction is required under article 12 of the Statute even if there is another State which has delegated jurisdiction to the Court for that same situation.14

13. This is incorrect as a matter of law. In the matter under consideration, the acceptance by Israel of the Court’s jurisdiction is not required, as the Court can exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine. As soon as there is one jurisdictional basis pursuant to article 12(2)(a) or (b) of the Statute, there is no need for an additional one.15

14. Israel also argues that its claim that Palestine is not a State on the territory of which the alleged conduct occurred is in itself sufficient to make it the sole State whose acceptance of jurisdiction is required.16 It points out that it ‘would be problematic […] to deny standing on the basis that a State needs to establish the merits of a jurisdictional challenge as a prerequisite to its standing to make it.’17 Israel submits that all that is required for it to have standing under article 19(2)(c) of the Statute is that its claim is prima facie tenable.18 Israel further alleges that it has an ‘immediate right to challenge jurisdiction under Article 19 given the current stage of the proceedings’19 and that it is in fact under an obligation to do so now pursuant to article 19(5) of the Statute.20 According to Israel, its obligation to act without further delay is triggered by the fact that it now knows, based on the public statements of the Prosecutor and on the basis of the Requests for Assistance it received from the Court, that Israeli nationals are the subjects of applications for arrest warrants in relation to acts that allegedly took place on the territory of Gaza.21

15. First, the Chamber rejects Israel’s argument that merely because it claims that Palestine could not have delegated jurisdiction to the Court, the Chamber would have to ignore its previous decision (rendered in a different composition) which has become res judicata.22 Indeed, there is a fundamental difference between granting a State standing on the presumptive validity of its claim to have jurisdiction over a situation or a case and granting it standing on the basis of an argument – which was already ruled upon – that a particular State Party does not have jurisdiction.

16. In any event, Israel’s standing is not an issue in this instance, as Israel clearly would have standing to bring a challenge as the State of nationality under article 19(2)(b) juncto article 12(2)(b) of the Statute if the Chamber decides to issue any warrants of arrest for Israeli nationals. The issue before the Chamber is whether Israel is entitled – or indeed obliged – to bring such a challenge before the Chamber has ruled on the Prosecution’s applications for warrants of arrest.23

17. The Chamber notes that States are not entitled under the Statute to challenge jurisdiction of the Court on the basis of Article 19 prior to the issuance of a warrant of arrest or a summons. Indeed, the Prosecution typically conducts the entire application process under Article 58 of the Statute ex parte. States therefore only become aware of the existence of the proceedings after the Court has ruled on the application when the arrest warrant or summons is notified to them or made public. The wording of article 19(2)(b) of the Statute makes it clear that States may only challenge the Court’s jurisdiction in relation to a particular case, i.e. after the relevant Pre-Trial Chamber ruled that there are reasonable grounds to believe that a person has committed a crime within the jurisdiction of the Court and issued a warrant of arrest or a summons to ensure the person’s appearance before the Court.

18. The Chamber wishes to reassure Israel that it will not be estopped on the basis of article 19(5) of the Statute from bringing a jurisdictional challenge because of the public statements made by the Prosecutor or the Requests for Assistance it has received from the Court in relation to the investigation. Israel will have the full opportunity to challenge the Court’s jurisdiction and/or admissibility of any particular case if and when the Chamber issues any arrest warrants or summonses against its nationals.

THE CHAMBER HEREBY, FOR THE ABOVE REASONS, REJECTS Israel’s request for leave to reply; and REJECTS Israel’s challenge to the jurisdiction of the Court pursuant to article 19(2) of the Statute as premature.”