10 No. 73 JUSTICE proceedings and has never received appellate review – had become “res judicata.” The Pre-Trial Chamber also ignored the fact that the 2021 decision expressly reserved issues that were now raised by Israel in its submissions to more advanced stages of the proceedings. As a consequence, the Pre-Trial Chamber has effectively invalidated a state’s right to bring forward a jurisdictional challenge prior to the issuance of arrest warrants, notwithstanding the severe repercussions that such a decision may entail to its sovereign rights, as well as the rights of the persons concerned. Third, the Pre-Trial Chamber rejected Israel’s argument that the Prosecutor was under obligation to give Israel a new or additional notice, as required by Article 18 of the Rome Statute, regarding his intended investigation into the events following the October 7 attacks. The nature and character of the events investigated since October 2023 are entirely different from the scope of the investigation that had been initiated in 2021. The judges decided that Israel did not have the right to receive a new notice, thus depriving Israel of the opportunity to assert its rights under Article 18 of the Rome Statute. As stated, Israel, despite its status as a non-Party State and despite its position regarding the lack of jurisdiction of the Court, was open to receiving information from the Court, to examine any facts and investigate if needed. One would have thought that the Prosecutor’s own investigation could have benefited from such an approach, as it would have allowed the Prosecutor to establish a better understanding of the relevant facts as they pertain to issues which are not within the public domain. Instead of encouraging the Prosecutor to work with Israel and explore the possibility of domestic action in the spirit of complementarity, the Chamber reached a result that is antithetical to the purposes of the complementarity framework upon which the Rome Statute system is founded. Not least important, the Pre-Trial Chamber completely disregarded the fact that Israel has a well-functioning, independent legal system, that is capable and willing to investigate, and when necessary prosecute, alleged violations that arise in the context of military operations, and which also provides for a robust judicial review of governmental actions by the Supreme Court, including professional and independent mechanisms to investigate specific incidents and policylevel issues. As I mentioned, we have appealed these decisions. Israel’s decision to take part in these proceedings, as a non-Party State to the Statute, was not an obvious one and should not be taken for granted. The light-handed manner in which the Chamber brushed aside Israel’s legitimate arguments doesn't help to solidify trust in the fairness and professionality of this institution. It should be noted that the Pre-Trial Chamber invited the submission of amicus curiae on the question of jurisdiction. States, organizations and individuals have submitted briefs to the Court. In this regard, states such as the United States and Germany raised similar objections before the Court, which were likewise ignored by the Pre-Trial Chamber. This is not the way for the Court to demonstrate that it has properly implemented the Rome Statute as required, and to garner legitimacy and support for its decisions. We expect the Appeals Chamber to intervene in this issue to assure the proper application of the Rome Statute and restore the Court’s integrity. We also consider it important that states and the academic community speak out more in this regard. True supporters of the international criminal justice project should be able to express legitimate criticism of the Court and its functioning. Participation in International Forums After discussing mainly legal proceedings before international tribunals, I would like to elaborate on other unique aspects of our work. As I mentioned, it is important to take a bird’s-eye-view on the developments in the international legal sphere. In my department, we are also working on issues that are not related to the war, but rather aimed at strengthening Israel’s position within the international community. I shall briefly mention three prominent projects in which we were involved during 2024. CAI In March 2024, after two years of negotiations, the Council of Europe finalized the text for a new framework convention on Artificial Intelligence. It is the first treaty that explicitly addresses adverse effects on human rights, democracy and the rule of law that may arise from the use of AI systems. This represents a significant milestone, and a great example of our role as international lawyers. The new framework convention focuses on civilian public sector uses of AI. It does not create new human rights obligations, but it connects existing obligations with known AI risks, such as discrimination and privacy. The main field in which the Convention innovates is in its requirement for States to implement a risk management framework and to provide remedies to individuals. One controversial issue discussed in the negotiations was whether the convention should apply merely to the
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