By Alessandro Spinillo, thinc.
ICC investigation into the situation in Palestine: Appeals Chamber admits Israel’s appeal on jurisdiction and remands the matter to the Pre-Trial Chamber to rule on the substance of Israel’s jurisdictional challenge.
In an important decision, on April 24, 2025, the ICC Appeals Chamber reversed the Pre-Trial Chamber’s ruling that rejected Israel’s jurisdictional challenge as premature.
Reasoning behind the reversal:
The Pre-Trial Chamber argued that such challenges could only be addressed when summonses or arrest warrants are notified or made public: “[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.”
However, the Appeals Chamber concluded that this reasoning was flawed, as Article 19(2)(c) of the Rome Statute explicitly allows states to challenge the Court’s jurisdiction at any stage of the proceedings.
Additionally, the Pre-Trial Chamber contended that its prior ruling on jurisdiction, dated February 5, 2021, had become res iudicata—a principle meaning “already judged”—and therefore could not be revisited. The Appeals Chamber disagreed, noting that the previous decision did not substantively address the arguments raised by Israel. In fact, on that occasion, the Pre-Trial Chamber specifically held that issues pertaining to the impact of the Oslo Agreements on the Court’s jurisdiction “may be raised by interested States based on Article 19” at a later stage.
This pending issue was notably addressed by the United Kingdom in its request for leave to submit written observations under Rule 103, filed on June 10, 2024. The UK’s request highlighted the jurisdictional implications of the Oslo Accords, particularly the argument that Palestine cannot delegate jurisdiction over Israeli nationals due to the limitations imposed by the Accords.
Key Points of the Decision
- The Appeals Chamber identified an “error of law” in the Pre-Trial Chamber’s interpretation of Article 19(2)(c), affirming Israel’s right to challenge jurisdiction at any stage of the proceedings.
- It rejected the Pre-Trial Chamber’s reliance on res iudicata, as the prior decision did not comprehensively address Israel’s jurisdictional arguments.
- The Appeals Chamber highlighted the importance of resolving jurisdictional challenges promptly and thoroughly to uphold fairness and proper judicial process.
- The matter was remanded to the Pre-Trial Chamber for reconsideration, with instructions to address Israel’s arguments substantively.
Criticism
The Appeals Chamber implicitly acknowledges that key jurisdictional issues remain unresolved, including the limitations imposed by the Oslo Accords on the Court’s jurisdiction. Despite this, it rejected Israel’s request to revoke the two arrest warrants issued by the Pre-Trial Chamber.
It is peculiar that an international criminal court would issue arrest warrants while its jurisdiction is still under debate. Unsurprisingly, an increasing number of ICC member states have expressed reluctance to comply with the arrest warrants against Israeli leaders.
