The International Criminal Court in The Hague rejected Israel’s appeal

At the heart of the appeal was Israel’s claim that the developments since the Hamas attack on October 7, 2023 create a “new situation”, which requires the prosecution to redo the procedural step of prior notification to the relevant state. Israel sought to rely on the principle of complementarity according to which the court should have only supplementary authority, and when a state conducts an investigation or a real and effective legal process, it has priority over external intervention.

The Appeals Chamber did not accept the claim, and determined that there is no basis for the obligation of a “new notice” in the format that Israel requested, and that it is not a change that requires a “reset” of the mechanism. This removed a major obstacle that Israel tried to place before the prosecution within the procedural track of Article 18, which is intended to allow the state to reply that it itself is investigating the same acts and to ask the prosecution to refrain from continuing its actions or to postpone them.

In the background of these things is also the fundamental dispute between Israel and the Court: Israel is not a party to the Rome Convention, and emphasizes that the Court has no authority over it and that its judicial system is independent and capable of examining claims internally. On the other hand, the prosecution in the court sees the investigated “situation” as being within its jurisdiction, and continues to advance the proceedings as part of the investigation.

According to the decision, the investigation into the “situation in Palestine” was opened in 2021, after the referral to the court from 2018, and later a notification was given according to Article 18(1) to Israel as well. After October 7, 2023, additional applications were submitted to the tribunal, and Israel applied to the prosecutor with a request to postpone the investigative actions in relation to acts attributed to Israeli citizens or others under its authority – but the prosecution replied that the request is not submitted within the relevant timing and format. Later, Israel turned to the court and requested that it order the prosecution to deliver a new 18(1) notice. This request was denied in November 2024, and now the appeal against it has also been denied.

The Ministry of Foreign Affairs attacked the court’s decision: “Israel rejects the decision of the Appeals Chamber of the International Criminal Court (ICC), which was accepted by a narrow majority, to deny Israel the right to receive advance notice – a right required by virtue of the principle of complementarity, especially when it comes to a democratic country with an independent and strong judicial system. This is another case of the ongoing politicization of the court and a blatant disregard for the sovereign rights of countries that are not party to the treaty, as well as its own obligations According to the Rome Convention, this is what politics in the guise of ‘international law’ looks like.”