The International Criminal Court (ICC) announced on November 21 that a Pre-Trial Chamber (PTC) had issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Minister of Defense Yoav Gallant. The PTC “found reasonable grounds to believe” that both Netanyahu and Gallant were responsible as co-perpetrators for war crimes (starvation as a method of warfare) and crimes against humanity (murder, persecution, and other inhumane acts) committed in the Gaza Strip. It also found “reasonable grounds to believe” that Netanyahu and Gallant bear responsibility for the war crime of intentionally directing attacks against the civilian population under the doctrine of superior responsibility. The PTC’s decision came almost six months after the Prosecutor, Karim Khan, publicly announced that he was requesting the Chamber to issue warrants.
The PTC’s decision has already generated diverging reactions from States and civil society, and reignited debate on various legal complexities in the case (see here, here and here). Our focus in this essay is on one narrow aspect of the situation that has been previously mentioned but received little attention, namely the use of the “reasonable grounds to believe” standard for deciding whether to issue an arrest warrant. That is the standard upon which the Rome Statute says the Prosecutor and the PTC should base their decisions, so in that sense was the “correct” standard for the PTC to apply.[1] But the question we address is whether this should be the standard when considering whether to arrest, for example, a duly elected head of government whose removal could well be expected to profoundly disrupt the functioning of the state in question.
Background
The background of this issue involves the controversial question of whether head of state immunity applies in connection with cases before the ICC. We deal with it here only to the extent needed to address our narrower question regarding the “reasonable grounds to believe” standard.
Under widely-accepted principles of customary international law, and as explained by the International Court of Justice (ICJ) in the 2002 Arrest Warrant case, a state is entitled to absolute inviolability and immunity for its head of state or government from the criminal process of another state. The Arrest Warrant case made clear the ICJ’s conclusion that customary international law does not provide “any form of exception to the rule according immunity from criminal jurisdiction and inviolability [where the accused is] suspected of having committed war crimes or crimes against humanity.” Interestingly, there appears to have been agreement between both parties in the Arrest Warrant case that customary international law immunity would apply if the visiting official was present in the country “on the basis of an official invitation.”
For its part, the ICC has concluded that the normal customary international law protections for a head of state do not apply with respect to international courts, such as the ICC, and has made no exception for cases where the presence of the accused is “on the basis of an official invitation.” This conclusion is reflected most recently in the decision of Pre-Trial Chamber II in the case involving the failure of Mongolia to arrest and surrender Russian President Vladimir Putin when he visited Mongolia in September, notwithstanding the Court’s arrest warrant against Putin and the Court’s formal request for cooperation by Mongolia in executing the warrant. In the Court’s view, the relevant provisions of the Rome Statute have “the effect of removing any and all international law immunities of officials, including Heads of State [and binds Rome Statute parties] not to recognize any kind of immunity or apply special procedural rules that they may attach to any persons.” In support of its conclusion, the PTC referenced the statement in the Arrest Warrant case that an official who otherwise has Head of State immunity “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction,” which the ICJ followed with a reference to the Rome Statute’s Article on the barring of official immunities.
The PTC’s conclusion on head of state immunity before the ICC has, however, been the subject of criticism.
First, there are questions about the meaning and scope of the ICJ statement referenced by the PTC. In any event, the thrust of the criticism is that states cannot, by joining together to form the ICC, modify the rights to which states that are not parties are otherwise due. Under this view, that proposition includes the rights that a non-ICC party has under customary international law for the protection of its head of state from legal process.
For purposes of this essay, we proceed arguendo on the basis of the position staked out by the ICC: that is to say, that customary international law does not preclude the issuance of an arrest warrant emanating from the ICC. However, even if we accept the basic conclusion that immunity should not apply in cases involving a person who commits a Rome Statute crime, the decision to issue the arrest warrant is taken before it has been determined that the person has in fact committed such a crime, and the mere initiation of legal proceedings against a head of state can have profound consequences for both the individual suspect and the state he or she heads. This then forces us to confront the question: how confident should the ICC be that the person has in fact perpetrated the crime? Put in other terms: what standard of proof should the Prosecutor and the Court apply in making decisions whether to issue an arrest warrant?
The answer to this question is in one sense clear: the Prosecutor and the Court should apply the “reasonable grounds to believe” standard because that is what the Rome Statute tells them to do. But does this make sense?
Rationale for applying a higher standard
The mere issuance of a warrant of arrest for a sitting head of state inevitably treads on the sovereignty interests of the state. It implicates not only the liberty interests of the accused, who of course remains entitled to the presumption of innocence, but also the proper functioning of the state itself. For democratically elected leaders especially, action to arrest a sitting of head of state is in tension with the right of that state to govern itself in the way its people best see fit. This idea is reflected in the recognition, as part of the principle of self-determination, that all peoples “always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference.”
On a more practical level, an arrest warrant for a sitting head of state can fundamentally interfere with the ability of the state to function properly internationally, including by hindering a state’s ability to conduct official business in meetings with foreign leaders.
The issuance of an arrest warrant can also interfere with the ability of would-be arresting states to carry out functions that they consider vital. ICC parties may have significant interests in working with the affected state, which can be complicated by an obligation to execute such an arrest warrant. As an illustrative example, we might look to the recent talks that led to the ceasefire agreement between Hezbollah and Israel. France reportedly had to walk back a statement that it would implement the ICC arrest warrant in order to gain agreement needed to allow France’s participation in an oversight committee to monitor implementation of the agreement. France subsequently suggested that it would not necessarily arrest Netanyahu if he travelled to France.
With all this in mind, it should not be all that surprising that Russia, in connection with President Putin’s planned trip to South Africa back in July 2023 said that “arresting its sitting President would be a declaration of war.” Indeed, when it comes to the imposition of an obligation on the 124 ICC states parties to arrest and surrender a third country’s head of state, that might be seen as akin to a policy of regime change.
The need for a balancing of interests
All that said, it does not necessarily follow that that the importance of protecting the rights of the state from outside “interference” outweighs all other interests of the international community, including the interest in pursuing accountability for those accused of grave international crimes. The essence of the ICC’s conclusion — and the arguendo basis upon which this essay proceeds — is that the interest in pursuing accountability prevails and that the ICC is therefore not required to respect immunity. Nonetheless, even if the Court’s conclusion is correct, the additional interests at stake in arresting a sitting head of state would seem to alter the normal balancing between liberty and accountability that underlies the “reasonable grounds” standard. Shouldn’t the Prosecutor and Court need to meet a higher burden of proof before taking measures that could irreparably harm the interests of a state? Put another way, even if one accepts the ICC’s conclusion that head of state immunity can be overcome, it does not necessarily follow that the standard that the Prosecutor and the Court should apply in determining whether an arrest warrant should be issued applies the same to a head of state as to other individuals. Such a drastic measure as the arrest of a sitting head of state (particularly one that has been duly elected) would seem to require, at a minimum, a more demanding standard than “reasonable grounds to believe.”
The Standard for Arrest Warrants
The argument in favor of the need for a higher standard becomes even more apparent when we consider how relatively low the “reasonable grounds to believe” standard actually is.
To begin, Article 58 of the Rome Statute provides that the “Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if … [t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.” Once the Prosecutor satisfies this burden, the Pre-Trial Chamber is obliged to issue the arrest warrant. It thus lacks discretion to decline the request on policy grounds. Indeed, the Court has even said that it lacks discretion to decline to issue an arrest warrant on the ground that the Prosecutor has failed to show that the case against the individual is admissible (e.g., that it is of sufficient gravity or that the state in question is unable or unwilling to investigate or prosecute).
Meanwhile, the proceeding in which the Prosecutor must persuade the Pre-Trial Chamber to issue the warrant is conducted ex parte, meaning that neither the accused, nor the state that he or she heads, is offered an opportunity to address the question whether the burden has in fact been met, any issues pertaining to jurisdiction, admissibility, the ways in which the issuance or execution of the arrest warrant might disrupt the ability of the state to function or other state interests that may be implicated.
At the same time, while the Court has not comprehensively defined the meaning of “reasonable grounds to believe” in Article 58, it is on its face substantially lower than the standard that the Court is required to apply at other stages of the process. It is of course far lower than the “beyond reasonable doubt” standard that the Court eventually must apply in determining whether a person is guilty of the crime. But it is also lower than the standard that applies at the “confirmation of charges” stage – i.e., that there are “substantial grounds to believe” that the person has committed the crime. For its part, the Appeals Chamber, in the Al-Bashir case, suggested that the reasonable grounds standard may be equated with the “reasonable suspicion” standard in Article 5(1) (c) of the European Convention on Human Rights, which merely requires the “existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence” (emphasis in original). In short, under these provisions, a head of state can be subject to an arrest warrant – and ICC states can be obliged to enforce it – even if there is insufficient evidence to establish substantial grounds to believe that he or she has committed the alleged offenses.
The different situations of states that are Rome Statute parties, and those that are not.
As among Rome Statute parties, one can agree or disagree that as a matter of policy the “reasonable grounds to believe” standard is too low, but states parties have agreed to its use by becoming parties to the Rome Statute. But the situation is different for states that are not parties. Thus, even if we accept arguendo that the customary international law rules on immunity do not prevent an international court from moving forward against a head of state – and do not prevent a state from executing an arrest warrant emanating from an international court against a head of state – it does not follow that the basis on which such an international court should proceed is the “reasonable grounds to believe” standard set out in Article 58. As suggested above, there are important reasons to consider that the use of this standard in the context of an arrest warrant against a sitting head of state fails to properly balance the competing interests of accountability for perpetrators of Rome Statute crimes, on the one hand, and the interests in protecting the ability of states to have their heads carry out their governmental duties.
Before closing, we should underscore that the objective of this essay is simply to raise a narrow point about the “reasonable grounds to believe” standard. Nothing in the essay should be understood as taking a position regarding whether there were in fact “reasonable grounds to believe” that any particular accused committed the alleged offenses or how any of the heads of state against whom the ICC has issued arrest warrants would have fared if a higher standard were applied at the arrest warrant stage. Neither should anything in this essay be understood as expressing a view on the extent to which considerations similar to those described above should be taken into account with respect to persons other than a head of state on whose behalf a state might assert a claim to immunity, or on the more general position that head of state immunity is inapplicable with respect to the ICC (which we have accepted arguendo for the purposes of this essay). Rather, our point is simply to focus on the narrow question of the “reasonable grounds to believe” standard – and whether it properly balances the competing interests of the international community. It is our view that this is an issue worthy of greater attention than it has erstwhile received.
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[1] To be clear, the Prosecutor has indicated that he self-imposes a somewhat differently-formulated standard of “realistic prospect of conviction” in assessing the evidence. That said, his announcement that he was seeking the arrest warrant said only that he had “reasonable grounds to believe” that the crimes had been committed, though he also noted that he would “not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met.”. Notably, the panel of experts that he specially appointed was specifically mandated to opine only on whether there was “reasonable grounds to believe” and – most important – that was the standard used by the Pre-Trial Chamber in deciding to issue the arrest warrants.