International Criminal Court upholds Netanyahu’s arrest warrant

In an important development, the appeals chamber rejected Israel’s arguments that opening an investigation after October 7 was contrary to the Rome Statute.

The Appeals Chamber of the International Criminal Court (ICC) ruled against Israel’s arguments that the investigation into crimes committed in Gaza after October 7, 2023, was invalid.

The decision represents a significant development in the Palestine investigation, which led to the issuing of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former Defense Minister Yoav Gallant in November last year.

Israel has filed numerous appeals to try to invalidate the warrants, including an attempt to disqualify the court’s chief prosecutor, Karim Khan, for alleged lack of impartiality, and a challenge to the court’s jurisdiction in Palestine.

The ICC investigation into war crimes committed in occupied Palestine was launched in 2021, based on a complaint made by the State of Palestine in 2018.

But, since November 2023, another seven complaints have been filed by South Africa, Bangladesh, Comoros, Bolivia, Djibouti, Chile and Mexico.

In his appeal, Israel argued that the prosecutor should have notified him of a new investigation following the new referrals from the seven states, in accordance with Article 18 (1) of the Rome Statute, which requires the prosecutor to formally notify any state involved when an investigation is opened.

This notice explains what the investigation will cover and gives the State the opportunity to argue that it is already investigating the same issues on its own, a principle designed to avoid duplication of efforts.

The prosecutor did so in 2021, but Israel did not respond to the notice. Instead, he argued that the court had no legal authority over the situation.

After the prosecutor requested and obtained arrest warrants for Netanyahu and Gallant, Israel changed its position.

The ruling claimed that events following the Hamas-led attacks against Israel on October 7, 2023 represented a completely new situation, meaning the court should have issued a new notification before proceeding with the case.

ICC appeals judges rejected that argument. They ruled that the investigation into events after October 7th is covered by the original 2021 notification, so no new notification was necessary.

If Israel had been successful, the arrest warrants would have been invalidated. The prosecutor would have to start the entire notification process over again before proceeding with the investigation, although Israel could, then as now, contest the case by arguing that it is conducting its own investigations into Netanyahu and Gallant, in accordance with the principle of complementarity.

“As noted in the ruling, Israel had every right to invoke the principle of complementarity as soon as the prosecutor’s office opened the Palestine investigation. It did not do so, choosing instead to reiterate its baseless claim that the ICC has no jurisdiction over the Israelis,” said Kevin Jon Heller, professor of international law at the University of Copenhagen.

“Israel only cares about Art. 18(1) now because the Prosecutor did what Israel was sure he would not do: actually seek arrest warrants for high-ranking government officials,” Heller wrote in X.

“Congratulations to the Appeals Chamber for realizing the fallacy of Israel’s baseless arguments and rejecting the appeal.”

“Congratulations also to the Appeals Chamber for having the courage to follow the law and reject Israel’s appeal. We can only hope that this does not lead to another round of US sanctions,” wrote Heller, who also serves as special counsel on war crimes to the ICC prosecutor.

The ICC investigation into alleged Israeli war crimes led the US to impose sanctions on the court’s chief prosecutor, his two deputy prosecutors and the judges who issued the warrants in November.

Originally published by Middle East Eye on 12/15/2025

For Sondos Asem