Understanding the ICC Prosecutor’s Request for Arrest Warrants

Yesterday, ICC Prosecutor Karim Khan filed applications for the ICC to issue arrest warrants for three Palestinian and two Israeli leaders for crimes within the ICC’s jurisdiction. If a pre-trial chamber grants these requests, then any state party to the Rome Statute of the ICC will be obliged to arrest and surrender these individuals to the ICC for trial.

International courts have remained in the headlines as the hostilities in Gaza continue to claim civilian lives, and fading hopes for the safe return of the remaining hostages and their bodies turn on an elusive deal between Hamas and the Israeli government. Meanwhile, the looming prospect of a full-scale Israeli offensive in Rafah, on Gaza’s border with Egypt, has led an estimated 800,000 people to flee, with no refuge being offered either by Egypt or by Israel. 

The catastrophic conditions in Gaza compound the list of humanitarian crises affecting civilians in conflict zones around the world. Yet, Israel’s long-time identity as a liberal democracy—recently challenged by the current government’s assault on the judiciary—means that it is justifiably under pressure to live up to the standards it espouses. The ascendancy of right-wing ideologues in Israeli society and political institutions, which long predates Oct. 7, has far-reaching implications not only for the prospects of an end to the military campaign in Gaza, but also for the continued international acceptance of Israel as a legitimate country within its pre-1967 borders. 

There are two international courts currently seized with questions involving Israel: the International Court of Justice (ICJ), which hears legal disputes between states, and the International Criminal Court (ICC), which prosecutes individuals responsible for international crimes. The jurisdiction of both courts is based on state consent. In the current proceedings involving Israel, the ICJ’s jurisdiction is based on Israel’s ratification of the Genocide Convention in 1950. The ICC’s jurisdiction over alleged international crimes committed by Palestinians or on the territory of the West Bank, Gaza, and East Jerusalem is based on the accession of the State of Palestine to the court’s founding treaty in 2015, following the U.N. General Assembly’s decision to accord Palestine “non-member observer state” status in the United Nations.

On May 16 and 17, legal teams from South Africa and Israel argued before the International Court of Justice about whether the court should issue a third provisional measures order protecting the rights of Palestinians in Gaza under the Genocide Convention (see here, here, and here for background to this case). Because the ICJ’s jurisdiction is limited to that conferred by the Genocide Convention, any orders at this stage of the proceedings are based on a determination that Palestinians in Gaza have a “plausible right” to protection under that Convention, which is a fairly low threshold. 

For the ICC to issue arrest warrants against individuals, a pre-trial chamber of that court must determine that there are “reasonable grounds to believe” that the named individuals have committed the alleged crimes, based on evidence submitted by the prosecutor.

Individual Responsibility for International Crimes

Although it is natural to talk about states and non-state armed groups as if they were unitary entities, their actions are determined by the decisions of individuals. Violations of international law can give rise to both state responsibility and individual responsibility, as well as legal responsibility for other non-state actors. This is true whether or not an existing court or tribunal has jurisdiction to impose consequences on entities or individuals for their violations.

As a general matter, domestic (national) courts should take the lead on enforcing international conduct-regulating rules that apply to individuals. They have done this through domestic mechanisms, such as courts-martial (for violations of the laws of armed conflict by members of the armed forces) and trials in civilian courts. When domestic tribunals have been unwilling or unable to enforce applicable rules, states have created international and “hybrid” mechanisms, including the International Military Tribunal at Nuremberg (created as part of the London Agreement) and the two ad hoc international criminal tribunals created by the U.N. Security Council in the 1990’s. In part to avoid the need to reinvent the wheel after every mass atrocity (and, ideally, to deter individuals from committing atrocities to begin with), countries have also created a permanent International Criminal Court (ICC) with jurisdiction over war crimes, genocide, and crimes against humanity, as well as the crime of aggression. One hundred twenty-four countries have joined the Rome Statute creating the ICC, and 45 states have ratified the amendments creating jurisdiction among these states over the crime of aggression.  

The ICC has been a focal point for international accountability efforts over the past two decades. It has also been a focal point for criticism by powerful states who opted not to join the Rome Statute. The biggest point of contention has been the court’s jurisdictional regime, which encompasses international crimes committed by the nationals of states parties, as well as Rome Statute crimes committed on the territory of states parties (plus states that voluntarily submit their nationals and territory to the court’s jurisdiction on an ad hoc basis, or where there is a referral by the U.N. Security Council). Non-party states have argued that the consent-based nature of international law means that the ICC cannot lawfully exercise coercive authority over the nationals of non-party states absent that state’s consent. States parties take the position that the requisite consent comes from the state party on whose territory the alleged crimes have been committed, which would be able to exercise its territorial jurisdiction to prosecute those crimes in its domestic courts. (Complicating matters, certain forms of official immunity may shield some officials from certain types of legal proceedings in foreign courts, whereas international criminal tribunals do not recognize immunity defenses.)

The ICC prosecutor, who is elected by the Assembly of States Parties, decides which investigations to prioritize and when to ask the court to take other steps, such as issuing arrest warrants. When a pre-trial chamber of the ICC determines that there are reasonable grounds to believe that an individual has committed an international crime that falls within the court’s jurisdiction, it can issue an arrest warrant for the person that must be enforced by each of the court’s member states. (The court can also issue a summons to a defendant to appear voluntarily.) The court does not conduct trials in absentia (that is, without the defendant present), so proceedings would only go forward in a particular case after custody of the defendant. 

The Rome Statute Framework

The International Criminal Court applies the definitions of international crimes codified in its founding treaty, the Rome Statute. The core crimes include genocide, war crimes, and crimes against humanity. The crime of genocide requires the specific intent to destroy a protected group in whole or in part. Crimes against humanity are committed in the context of a widespread or systematic attack directed against a civilian population. War crimes are grave violations of international humanitarian law committed during an armed conflict between states, or in a non-international armed conflict.  

The Office of the Prosecutor (OTP) conducts investigations into “situations” referred to it by states parties or the U.N. Security Council, or that the prosecutor decides to initiate on his or her own initiative (propio motu) under appropriate conditions. The ICC has ongoing investigations into 12 situations. One of these is the “Situation in the State of Palestine,” which the OTP opened in March 2021. The decision to open a formal investigation followed a preliminary examination that lasted close to 5 years. Among the issues confronting the court was the question of the territorial scope of the ICC’s jurisdiction over the matter, particularly in light of the contested legal status of Palestine. Then-Prosecutor Fatou Bensouda reported:

On 5 February 2021, the Chamber decided, by a majority, that the Court may exercise its criminal jurisdiction in the Situation in Palestine, and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. In its majority ruling, the Chamber stressed that it was not determining whether Palestine fulfilled the requirements of statehood under public international law, or adjudicating a border dispute, or prejudging the question of any future borders; it was solely determining the scope of the Court's territorial jurisdiction for the purposes of the Rome Statute, as requested. 

Article 19 of the Rome Statute gives defendants, and certain states, the ability to challenge the ICC’s ability to hear a case. One method is by challenging the court’s jurisdiction over Israeli defendants under the Rome Statute. (Although Hamas defendants could also raise a jurisdictional challenge, this would undermine the political goal of confirming Palestinian statehood.) A challenge on the basis that Palestine lacked the capacity to ratify the Rome Statute is unlikely to succeed in light of the 2021 decision. Article 19 also permits challenges to particular cases on the grounds of admissibility, including under the system of complementarity. An admissibility challenge in these circumstances would consist of arguments that either Israel or Palestine is investigating or prosecuting (or has investigated or prosecuted) a particular case brought before the ICC. Under the ICC’s system of complementarity, the ICC will yield to genuine national investigations and prosecutions. 

In November 2023, five states parties referred the situation in the State of Palestine to the ICC. At that time, the prosecutor confirmed that an investigation had been ongoing since March 2021, and that it encompasses conduct going back to June 2014. (One of the referring parties was South Africa, which ignored an outstanding ICC arrest warrant for Sudanese President Omar al-Bashir in 2015, and whose then-president attempted to withdraw from the Rome Statute in 2016 without the required parliamentary approval.) A useful timeline of ICC actions can be found here.

The Prosecutor’s May 20 Announcement

The prosecutor’s decision to seek arrest warrants comes as no surprise. Karim Khan previously sought and obtained an arrest warrant for Russian President Vladimir Putin, demonstrating his willingness to pursue accountability at the highest levels. At this juncture, he has decided to pursue charges against both Israeli and Hamas leaders relating to the attacks of October 7 and the subsequent IDF military operation in Gaza, rather than other alleged international crimes relating to Israel’s prolonged military occupation of the territories it seized from neighboring Arab countries during the 1967 war. (The legal consequences of the occupation form the subject-matter of a pending request to the ICJ for a non-binding advisory opinion.) 

Contrary to President Biden’s statement in response to the prosecutor’s announcement, the decision to seek charges does not “imply … [an] equivalence” between Israel and Hamas. If there are reasonable grounds to believe that crimes within the ICC’s jurisdiction have been committed that are of “sufficient gravity” to warrant action by the ICC under the Rome Statute, then the prosecutor should not differentiate between the sides to a conflict based on the perceived legitimacy, or lack thereof, of their respective aims. There are legitimate and long-standing questions about whether pursuing international criminal accountability can interfere with efforts to resolve active armed conflicts, and whether prosecutors should exercise restraint on that basis. This has often been framed as the “peace vs. justice” debate. However, the political effects of prosecution are a separate question from whether crimes have been committed for which individuals are legally responsible under international law. Whether the prosecutor’s May 20 announcement is “outrageous” from a political standpoint is a matter of opinion. It is not outrageous from the standpoint of applying the relevant legal standards to the available evidence. 

The prosecutor has taken pains to insulate himself from accusations of politicized decision-making, even if these steps have not prevented strong rebukes. He has been carrying out his mandate with the assistance of a number of special advisers. He also constituted a panel of experts for the purpose of advising on “whether there are ‘reasonable grounds to believe’ that the persons named” in the applications for arrest warrants in the Situation in Palestine have committed particular international crimes. Under the Rome Statute, this determination must be made by a pre-trial chamber of ICC judges. However, by securing a unanimous opinion from the panel that the requisite legal standard has been met by the evidence they reviewed, Khan has attempted to give himself both legal and political cover for the decision to seek warrants. In addition, the high degree of support for the proposition that Russian crimes in Ukraine fall within the ICC’s jurisdiction even though Russia is not a state party to the Rome Statute takes the wind out of the sails of arguments that the nationals of a non-party state can never be subject to prosecution by the ICC.  

The panel included six high-profile experts in international criminal law based principally in the United Kingdom, assisted by two UK-based professors of international law. The experts included:

• Lord Justice Fulford, former vice-president of the Court of Appeal of England and Wales and former judge at the International Criminal Court;
• Judge Theodor Meron CMG, visiting professor at the University of Oxford, honorary fellow, Trinity College, and former judge and former president of the International Criminal Tribunal for the former Yugoslavia;
• Amal Clooney, barrister, adjunct professor at Columbia Law School and Co-Founder of the Clooney Foundation for Justice;
• Danny Friedman KC, barrister, expert in criminal law, international law and human rights;
• Baroness Helena Kennedy LT KC, barrister, member of the House of Lords and director of the International Bar Association Human Rights Institute; and
• Elizabeth Wilmshurst CMG KC, former deputy legal adviser at the United Kingdom Foreign and Commonwealth Office and distinguished fellow of International Law at Chatham House.

The panel agreed that the ICC has jurisdiction over the Situation in Palestine on the basis that “Palestine, including Gaza, is a State for the purpose of the ICC Statute.” The panel was not asked to advise on questions of admissibility, which will turn in large part on whether Palestine or Israel investigates and prosecutes the alleged crimes, thereby rendering ICC action superfluous. 

The panel was asked to review evidence of war crimes (grave violations of international humanitarian law committed during international and/or non-international armed conflicts) and crimes against humanity (international crimes committed as part of a widespread or systematic attack directed against any civilian population, pursuant to a state or organizational policy, whether during or outside of armed conflict). The panel indicated that it “is aware that additional crimes are under investigation and expected to lead to additional applications in the future.”

The Hamas suspects are Yahya Sinwar, the head of Hamas in the Gaza Strip; Mohammed Diab Ibrahim Al-Masri, known more commonly as Mohammed Deif, the commander-in-chief of the al-Qassam Brigades of Hamas; and Ismail Haniyeh, the head of Hamas’s Political Bureau. The Panel Report explains:

The Prosecutor seeks arrest warrants against three senior Hamas leaders for the war crimes of murder and the crimes against humanity of murder and extermination for the killing of hundreds of civilians on 7 October 2023. He also seeks to charge them with the war crime of taking at least 245 persons hostage. Finally, he seeks to charge them with the war crimes of rape and other forms of sexual violence, torture, cruel treatment, and outrages upon personal dignity and the crimes against humanity of rape and other forms of sexual violence, torture, and other inhumane acts for acts committed against Israeli hostages while they were in captivity. The Panel notes the Prosecutor’s statement that his investigations continue, including in relation to evidence of sexual violence on 7 October itself.  

The prosecutor made clear in his statement announcing the applications that international humanitarian law requires “the immediate release of all hostages taken from Israel” and “their safe return to their families.” Many family members of the hostages have been vocal critics of the Netanyahu government and have pushed for ICC action against Hamas leaders responsible for the atrocities of October 7. In a rational world, these applications would put an end to October 7 denialism. 

The prosecutor also seeks warrants for Benjamin Netanyahu, the prime minister of Israel, and Yoav Gallant, the Israeli minister of defense, on the basis that they committed the war crime of ‘intentionally using starvation of civilians as a method of warfare’ under article 8(2)(b)(xxv) of the ICC Statute. For the time being, the requested warrants focus on starvation and the “systematic deprivation of objects indispensable to the survival of Palestinian civilians in Gaza,” including “the war crimes of ‘[w]ilfully causing great suffering, or serious injury to body or health’ or cruel treatment, wilful killing or murder, and intentionally directing attacks against the civilian population,” as well as “the crimes against humanity of murder, extermination, other inhumane acts and persecution with respect to deaths and injuries resulting from or associated with” this deprivation. That said, the panel “notes the Prosecutor’s statement that other alleged crimes, including in connection with the large-scale bombing campaign in Gaza, are actively being investigated.” 

With respect to civilian deprivation, the panel acknowledged that “Israeli officials have a right to ensure that aid is not diverted to the benefit of the enemy and to stipulate lawful technical arrangements for its transfer.” However, they pointed to a variety of circumstances that, in their unanimous view, provided reasonable grounds to believe that Netanyahu and Gallant are responsible for international crimes, including the “siege on the Gaza Strip and the closure of border crossings; arbitrary restrictions on entry and distribution of essential supplies; cutting off supplies of electricity and water, and severely restricting food, medicine and fuel supplies,” as well as “attacks on facilities that produce food and clean water, attacks against civilians attempting to obtain relief supplies and attacks directed against humanitarian workers and convoys delivering relief supplies, despite the deconfliction and coordination by humanitarian agencies with Israel Defence Forces.” In other words, the panel found reasonable grounds to believe that civilian death and suffering has been intentional, not just incidental.

The prosecutor took pains to emphasize in his statement that “Israel, like all States, has a right to take action to defend its population.” He recalled that, at multiple junctures, he has “specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences.” In his view, “those who do not comply with the law should not complain later when my Office takes action. That day has come.”

Law and Politics

International law (like all law) exists because countries act as if it does. They justify their actions in legal terms. Yet because the international legal system is decentralized, and because the U.N. Charter gives five countries a veto over any collective enforcement action, the system’s success relies heavily on reciprocity and self-restraint. 

The role of criminal prosecutions both during and after armed conflicts has long been debated. The existence of the ICC is intended to encourage compliance with international criminal law, to support countries to conduct their own investigations and prosecutions, and to fill gaps left by domestic processes. Yet the prosecutor is also a political actor with an interest in promoting the ICC’s institutional legitimacy and clout. The prosecutor’s May 20 statement emphasized the importance of judicial and prosecutorial independence–a clear reference to threats and political pressure targeting the ICC. In addition, he emphasized the importance of public perceptions that the court is not applying the law “selectively,” which recalls long-standing criticisms that the court has focused disproportionately on defendants from the Global South, and especially Africa. 

Although the exercise of prosecutorial discretion and the allocation of scarce institutional resources is necessarily informed by a range of factors, the prosecutor explained his decision to seek warrants for both Israeli and Hamas leaders as motivated by the need to “prove, tangibly, that the lives of all human beings have equal value.” Sadly, this seemingly straightforward proposition is not being reflected either in the eliminationist rhetoric of some anti-Israel protests, which echo Hamas doctrine, or in some Israelis’ extremist language such as that cited by South Africa in its application to the International Court of Justice under the Genocide Convention. Whether the ICC’s prosecution—or even an attempt at prosecution—of the top political leaders of Hamas and Israel will hasten the release of hostages and stop the further destruction of civilian life in Gaza remains to be seen.