Update – International Criminal Court’s Attempt to Arrest Netanyahu Suffers Setback – But Our Fight Isn’t Over

In an act of lawfare, the International Criminal Court (ICC) launched a baseless investigation into Israel, issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Israel’s defense minister. Israel correctly challenged the ICC’s jurisdiction to make such a move. In a small but important victory for Israel, the Appeals Chamber of the ICC recently accepted Israel’s appeal against the Pre-Trial Chamber’s (PTC) ruling on Israel’s challenge to the court’s jurisdiction.

The ICC’s appellate chamber reversed the decision below and remanded the case back to the PTC to address Israel’s substantive challenges anew. Through our international affiliate, the European Centre for Law and Justice (ECLJ), we have filed leave to submit an amicus brief to the ICC in this case.

As background, in January 2015, the ICC prosecutor opened an investigation into what the ICC calls “Situation in the State of Palestine” to investigate whether war crimes have been committed by the parties to the decades-old Israeli-Palestinian conflict.

In January 2020, the ICC Prosecutor asked the Pre-Trial Chamber to rule whether the ICC has jurisdiction in the so-called “Occupied Palestinian Territory” (the Gaza Strip and the West Bank, including East Jerusalem). Israel is not a party to the Rome Statute (the treaty that created the ICC) and thus, under customary international law, is not subject to ICC jurisdiction. However, contrary to a basic principle of customary international law that a treaty does not apply to a non-party, the Rome Statute allows the ICC to exercise jurisdiction, among other things, if a crime is committed on the territory of the State Party by a national of a non-party State.

Here, since Israel has not ratified the Rome Statute, the only way the ICC could exercise jurisdiction over what’s occurring in the Gaza Strip and the West Bank is to consider “Palestine” a State and the Gaza Strip and the West Bank part of that State.

After receiving numerous amicus briefs, including one we submitted through the ECLJ, and without addressing important issues pertaining to the court’s lack of jurisdiction, the PTC ruled that the ICC has jurisdiction. The PTC erroneously considered “Palestine” a State for the purpose of the Rome Statute.

Then, October 7 happened. Terrorists from Gaza attacked Israel and murdered about 1,200 innocent Israelis, butchering men, women, children, infants, and the elderly. The Hamas terrorists committed horrible sexual crimes, including raping and mutilating women. Israel responded with the aim of dismantling Hamas and other terrorist organizations operating in Gaza.

In May 2024, the ICC prosecutor filed applications for arrest warrants against two deceased Hamas leaders and two Israelis, Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The warrants against the Hamas leaders have since been withdrawn. Only the attempt to prosecute Israel remains.

In September 2024, Israel submitted a challenge to the court’s jurisdiction before the PTC. However, the PTC rejected Israel’s challenge without addressing Israel’s substantive points, and Israel appealed that decision before the ICC Appeals Chamber.

On April 24, 2025, the Appeals Chamber determined that the PTC

insufficiently addresses Israel’s central contention that . . . the [Rome] Statute permits it to challenge the jurisdiction of the Court. Therefore, the [PTC] committed an error of law by failing to sufficiently direct itself to the relevant submissions brought before it in respect of the particular basis underpinning the challenge to the jurisdiction of the Court.

The Appeals Chamber then reversed and remanded the PTC’s decision in order for the PTC to rule on the substance of Israel’s jurisdictional challenge. Since the Appeals Chamber remanded the case back to the PTC, it also dismissed our request to file an amicus brief as moot.

We have again filed a request before the PTC for authorization to file amicus observations on the issue of jurisdiction of the ICC. Note that the jurisdictional issue affects not only Israel but also the United States, which has also not ratified the Rome Statute.

Our international legal team is currently preparing the brief. We hope that the PTC will allow us to file our legal observations on this important issue for the just and proper determination of the matter.

We will not stop our legal defense of Israel’s interests as these outrageous lawfare attacks continue.