ICC appeals chamber affirms jurisdiction to investigate alleged war crimes in Gaza – JURIST

The Appeals Chamber of the International Criminal Court (ICC), in a 3-2 majority, affirmed on Monday its jurisdiction to investigate the alleged war crimes that took place in Gaza after October 7, 2023, the Hamas-led attack on Israel.

The majority upheld the pre-trial chamber’s decision that the alleged crimes committed in Gaza after October 7, 2023 are within the scope of the notification issued by the Prosecutor pursuant to Article 18 of the Rome Statute. The decision allows the court’s investigation in Palestine to continue, which is the same investigation that prompted the issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.

Article 18(1) requires the Prosecutor to notify all state parties before the commencement of an investigation. The Prosecutor notified Israel on March 9, 2021, of the investigation into alleged crimes since June 2014. In an attempt to halt the investigation, Israel argued that the notification did not include events in Gaza that took place after October 7, 2023.

Rejecting Israel’s bid to appeal, the court reasoned that the notification did not limit itself to the “settlement regime” that took place in 2014. The court found that the Prosecutor had explicitly stated that the subject matter of the investigation includes acts that may constitute war crimes or crimes against humanity within the statute. The court also reiterated that the notice was sufficiently specific because the Prosecutor cannot possibly identify all acts which they intend to investigate at the early stage of an investigation.

The court, however, was divided on whether a new situation arose after October 7, 2023. While the majority found that nothing gave rise to a new situation that fell outside the scope of the investigation, Judge Luz Del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa dissented on the ground that the pre-trial chamber’s failure to consider the subsequent 2023 and 2024 referrals in its original decision amounts to an error of law that warrants the case be remanded to the pre-trial chamber for reconsideration.

In response, the Israeli Foreign Ministry said:

Israel rejects the ICC Appeals Chamber’s decision, by a narrow majority, to deny Israel’s right to receive advance notice, as demanded by the principle of complementarity particularly with regard to a democratic state with an independent and robust judicial system. This is yet another example of the ongoing politicization of the ICC and its blatant disregard for the sovereign rights of non-party States, as well as its own obligations under the Rome Statute.

The court’s jurisdiction over the situation in Palestine has been a heated topic in international law. While 79 member states of the ICC supported its operation in Gaza, the US has sanctioned ICC officials for their operation against Israel, arguing that they are not members of the ICC and the court was operating ultra vires.

Earlier this month, Human Rights Watch cited the increasing threats and sanctions faced by the ICC and urged member states of the ICC to safeguard the court and combat impunity for international crimes.