Afrasianet - Dr. Mahmoud Alhanafy - On 24 April 2025, the Appeals Chamber of the International Criminal Court (ICC) issued two simultaneous decisions that constituted a pivotal milestone in the process of international accountability for crimes committed in the Occupied Palestinian Territory.
The first decision rejected the request to suspend the execution of the arrest warrants issued against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Galant, while the second decision returned the court's jurisdiction file to the Pre-Trial Chamber for review in light of more precise legal criteria.
This development has raised many questions that must be addressed: What prompted the Court to issue these two decisions at this particular time? What formed the background to this unprecedented judicial decision? Why did the Court decide to continue the proceedings despite Israeli-led stabbing campaigns and political pressure?
How can it be explained that a State like Israel, which has long denied the Court's jurisdiction, initiated the formation of a legal defence team and formally challenged it? Did this conduct imply an implicit recognition of the Court's legitimacy despite its public dismissal?
On the other hand, what did Israel base its defenses on? Have their arguments about the absence of statehood in Palestine, or the functional immunity of officials, convinced any neutral legal body? Then how did the court respond? What legal provisions have it relied on to establish its competence and confirm the validity of arrest warrants? Has the Court succeeded in imposing the logic of law on the logic of political and diplomatic force?
Faced with this situation, how should the States parties to the Rome Statute have acted? Did it abide by its clear legal duty, or did it choose to equivocate and remain silent? Did this decision really mark a qualitative shift in the Court's trajectory towards accountability in Palestine? Or did it remain in the circle of legal symbolism, in the absence of a serious international will to implement it?
Despite the technical and principled observations we have previously recorded on the Court's performance, particularly in some cases of a political nature, we stand here clearly by this resolution, in defence of the independence of international justice, in respect of the victims' right to justice, and in the belief that justice is not begging, but rather being obtained, and that it is those who try to prevent it who should be condemned, not those who seek it.
Israel's Justifications for Rejecting the Court's Jurisdiction and Requesting Suspension of Arrest Warrants
Israel has filed multiple arguments before the ICC challenging its jurisdiction and requesting a suspension of the arrest warrants issued against Benjamin Netanyahu and Yoav Galant.
First, these defences consisted of the claim that Palestine was not a sovereign state within the meaning of article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties, making its accession to the Rome Statute invalid, or at least subject to legal dispute.
Israel also argued that article 12 of the Statute required territorial jurisdiction exercised by a State party, which did not apply to Palestinian territories, which Israel considered "disputed territories".
In addition, Israel has invoked the so-called functional immunity of officials, based on international customary rules, which prohibits the arrest and prosecution of heads of government and defense ministers while in office, in the absence of a Chapter VII Security Council mandate.
The issuance of the memoranda at this time, in light of an active armed conflict, threatens regional stability and undermines diplomatic efforts to calm down.
The Court's Response to Israel's Defences: Legal Adaptation and Human Rights and Procedural Analysis
The ICC's response to Israel's arguments is legally coherent and grounded in its human rights and procedural structure. The Court systematically rejected these defences, relying on clear provisions of the Rome Statute, foremost among which is article 12(2)(a), which allows the Court to exercise jurisdiction over crimes committed in the territory of any State party.
Since Palestine formally acceded to the Statute on 1 April 2015, and its instrument of accession was accepted by the Secretary-General of the United Nations, it is considered a State Party for the purposes of the Statute, regardless of the extent to which its sovereignty is achieved in accordance with the norms of public international law.
The Court supported this position with a precise procedural reference to Article 125, which regulates the mechanism of accession, asserting that Palestine's accession was carried out in a legal, sound and complete manner.
On the issue of sovereign immunities, the Court relied on article 27 of the Statute, which clearly stated that "the official status of any person, whether as Head of State or Government, or as a member of a Government or Parliament, shall not exempt him from criminal liability", nor shall it constitute a ground for commutation of sentence.
This article is a peremptory norm within the Court's legal system and supersedes traditional norms of immunities, particularly when dealing with serious crimes such as war crimes and crimes against humanity.
At the human rights level, the decision constituted a fundamental reconsideration of the concept of international justice, by affirming that the Court's formal status does not obscure individual responsibility, and that the principle of accountability must apply to all without exception, including heads of state.
This rebalances the rights of victims, particularly civilians in Gaza, who should not be deprived of their right to access justice under the pretext of the official positions of the accused.
Procedurally, the court reflected genuine judicial independence in the face of political and security pressures that tried to undermine its powers. It stressed that its judicial proceedings are not subject to negotiation equations or political appeasement, but are based exclusively on legal criteria.
According to article 58, the issuance of arrest warrants was based on the Pre-Trial Chamber's conviction that there were reasonable grounds to believe that the crimes had been committed, which means that the Tribunal did not exceed its powers, but exercised them under the mandate provided.
Ultimately, the Court's response enshrines the principle of non-impunity and demonstrates that international criminal justice, while fragile to politics, remains resilient when judicial will and procedural discipline are present.
Israel's Duality in Dealing with the Court: A Challenge to Jurisdiction, and Actual Interaction with Its Mechanisms – How to Understand That?
Although Israel is not a state party to the Rome Statute and despite its repeated political positions questioning the court's legitimacy and jurisdiction, it was actively and directly involved in the judicial process when arrest warrants were issued for its senior officials.
It hastened to establish a high-level international legal panel, filed detailed submissions to the Appeals Chamber, challenged jurisdiction and requested a stay of proceedings. This behaviour, despite its contrary appearance, carries substantial positive connotations that can be read as follows:
First: Practical recognition of the legitimacy of the Court
Even if Israel does not recognize the court in theory, its involvement in the judicial process constitutes a de facto recognition of the court's authority and status.
If the court had "lacked legitimacy" – as Israel claims – it would not have bothered to file formal defenses before it. This reveals the strength of the court's legal position, and the depth of its influence even on those who oppose it politically.
Strengthening the Court's Legitimacy at the International Level
Israel's behavior, despite its defensive nature, serves to strengthen the court's position in the international legal order. When a state like Israel – backed by great powers – is forced to engage in a legal debate before the court, it sends a message to the world that the court cannot be bypassed, even by those who object to it.
Third: The triumph of the principle of accountability, even outside the Rome Statute
This interaction shows that the principle of international accountability has become transient from formal membership, and that the mere existence of an independent judicial mechanism may force even non-members to deal with it, giving hope that the impact of the court will be extended to other systems hostile to justice.
Respect for legal obligations and enforcement of court decisions: responsibility of States parties
After the ICC issued arrest warrants for Benjamin Netanyahu and Yoav Galant, and the Appeals Chamber confirmed the legality of the move and refused to suspend it, it is no longer acceptable for states parties to the Rome Statute to stand idly by or hesitate. Under Articles 86 and 89 of the Statute, States parties are obliged to cooperate fully with the Court, in particular in the execution of its arrest warrants.
Any complacency in the implementation of these memoranda not only constitutes a gross legal breach, but also undermines the credibility of the international judicial system and gives political immunity room to prevail over justice.
States parties, particularly in Europe, Latin America and Africa, are now more than ever required to take a clear legal position that respects the Court's decisions and translates the principles of accountability into concrete implementation actions.
It is illogical – and immoral – for states to spend on supporting the court, praising its role in other disputes, and then dragging its feet on executing arrest warrants when they affect officials from politically backed states. Justice is neither selective, nor conditional on the balance of power.
The implementation of the decisions of the International Criminal Court is not only a procedural matter, but an indication of the commitment of states to the system of international humanitarian law and human rights.
Today, with the court's decision to refuse to suspend arrest warrants, Netanyahu is officially on trial internationally for serious crimes including the use of starvation as a weapon of war and crimes against humanity. Under the Statute of the International Criminal Court, any travel to States parties is risky of arrest. Although the actual implementation of the memorandum remains tied to the will of the states parties, Netanyahu's political standing has been dealt a severe blow, and the spectre of prosecution haunts him, placing serious restrictions on his external movement and weakening him. His ability to maneuver diplomatically. Thus, Netanyahu's punishment, which he has long evaded through international support, seems to be looming as a serious prospect on the legal horizon.
States parties are called upon today to demonstrate that their membership in the Court is not symbolic, but based on a genuine conviction that justice cannot be divided and that crimes against civilians, whoever committed, must be held accountable, not silenced or protected.
Professor of International Law and Human Rights