This article is part of our new symposium on the ICC and Israel-Hamas war.
On Monday, International Criminal Court (ICC) Prosecutor Karim Khan announced he is requesting a pre-trial chamber to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant for war crimes and crimes against humanity including starvation, intentionally directing attacks against a civilian population, extermination “including in the context of deaths caused by starvation, as a crime against humanity,” and persecution as a crime against humanity. He simultaneously seeks arrest warrants for three Hamas leaders – Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (more commonly known as Mohammed Deif), and Ismail Haniyeh – for war crimes and crimes against humanity including extermination as a crime against humanity, hostage taking, rape and other acts of sexual violence, and torture.
The prospects of ICC arrest warrants, including for high-level officials, have been intensely debated following the Hamas attacks against Israel on Oct. 7 of last year and during the intense and devastating conflict in Gaza that has followed. But the ICC’s investigation of the situation in Palestine began years ago, and many of the key legal and policy steps that brought us here were decided before Oct. 7.
We explain below how we got here and what is likely to happen next. In short, the Prosecutor’s decision to apply for arrest warrants comes after years of legal and policy moves that brought Gaza within the jurisdiction of the ICC, and begins a long process that could – but might not – lead to trials of the suspects named today. In addition, there may be further applications for arrest warrants, for different suspects and different or additional charges, yet to come. We provide the following information as a public resource for readers to draw their own conclusions.
How We Got Here
Step: A Failed Palestinian Attempt to Join ICC
Lead Actors: Palestinian Authority and Prosecutor
When: 2009 and 2012
On Jan. 22, 2009, the Palestinian National Authority lodged a declaration purporting to accept ICC jurisdiction under article 12(3) of the ICC Statute, which allows a “State” to make an ad hoc declaration accepting the Court’s jurisdiction.
Then-Prosecutor Luis Moreno Ocampo opened a “preliminary examination,” and on Apr. 3, 2012 issued a decision concluding that Palestine could not currently accept ICC jurisdiction. The Prosecutor wrote that Palestine’s status at the United Nations as an “observer” rather than a “Non‐member State” meant that it fell outside the definition of “State” as used in article 12 of the ICC Statute.
Step: U.N. General Assembly Grants Palestine “Non-Member Observer State” Status
Lead Actor: United Nations
When: Nov. 29, 2012
On Nov. 29, 2012, the U.N. General Assembly adopted Resolution 67/19 granting Palestine “non-member observer State” status in the U.N. (138 votes in favor, 9 votes against, and 41 abstentions).
Step: Palestine Joins the Court
Lead Actor: Palestinian Authority
When: Jan. 1, 2015
On Jan. 1-2, 2015, the Palestinian Authority deposited its instrument of accession to the Rome Statute to join as a full member, and submitted a declaration accepting the Court’s jurisdiction “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”
Note: The Rome Statute entered into force for Palestine on Apr. 1, 2015.
Step: Opening a Preliminary Examination
Lead Actor: Prosecutor
When: 2015
In January 2015, then-Prosecutor Fatou Bensouda announced the opening of a “preliminary examination” to determine if the statutory criteria for initiating an investigation in Palestine were satisfied.
Note: Not necessary in order for the Prosecutor to open a preliminary examination, but in May 2018, Palestine made an open-ended referral, as a State Party, of the situation on its territory to the Court.
Step: Opening an Investigation and Request for Ruling on Jurisdiction
Lead Actor: Prosecutor
When: December 2019
In December 2019, Prosecutor Bensouda announced that the Rome Statute Art. 53 criteria for opening an investigation into the situation in Palestine (including jurisdiction, admissibility, and the interests of justice) were satisfied. Nonetheless, given the “unique and highly contested legal and factual issues attaching to this situation,” the Prosecutor sought a ruling from Pre-Trial Chamber I to clarify the territorial scope of the Court’s jurisdiction.
Step: Approval of Jurisdiction for Palestine
Lead Actor: Pre-Trial Chamber
When: February 2021
In February 2021, Pre-Trial Chamber I concluded that the Court’s territorial jurisdiction “extends to Gaza and the West Bank, including East Jerusalem.”
Step: Opening of an Investigation
Lead Actor: Prosecutor
When: March 2021
In March 2021, Prosecutor Bensouda announced the opening of an investigation.
What Happened Today
Step: Application for Arrest Warrants.
Lead Actor: Prosecutor
When: Monday, May 20, 2024
In the application submitted to the Pre-Trial Chamber, the ICC’s current Prosecutor, Karim Khan, sets out the alleged crimes, and the alleged facts and evidence linking the person for whom a warrant is sought to the alleged crimes. When requesting a warrant, the Prosecutor must explain why it is necessary. This explanation could be in order to secure the person’s appearance, to stop the person hampering the proceedings, or to stop the person continuing to commit the alleged crime(s).
Applications for a warrant to the Pre-Trial Chamber can be made in a non-public format, with a request that any warrant be issued under seal. In the past, prosecutors have used one of three options:
Option 1: Completely confidential
File arrest warrant application under seal with no public announcement.
Examples include the Situation in Ukraine (existence of arrest warrant application made public by President of the Court upon Pre-Trial Chamber approval and issuance of arrest warrants) or Situation in the Central African Republic (existence of arrest warrant only made public after suspect was apprehended).Option 2: Semi-confidential; semi-public
File arrest warrant application under seal with a public announcement of its existence. This allows the Prosecutor to communicate progress on an investigation to the public and condemn as unlawful certain actions.
Example of Situation in LibyaOption 3: Fully public
Public release of arrest warrant applications.
Example of Situation in Georgia
The Prosecutor chose Option 2 today for the application of arrest warrants. Here the names and charges are public but the application itself is not. Judges determine whether to release the arrest warrant publicly upon its issuance by a Pre-Trial Chamber (the following step in the process).
What Happens Next
Step: Decision on Whether to Issue an Arrest Warrant
Lead Actor: Pre-Trial Chamber
The Pre-Trial Chamber assesses whether there are “reasonable grounds to believe that the person” subject to the application for an arrest warrant “has committed a crime within the jurisdiction of the Court.” (Art 58(1)).
Historically, the Pre-Trial Chamber has taken several months to decide whether to issue a warrant. Past examples include warrants for Heads of State Omar al-Bashir (Jul. 2008 to Mar. 2009) and Vladimir Putin (Feb. 2023 to March 2023).
To date, one public application for an arrest warrant has been denied (though later issued on a subsequent application), and one of the charges in the al-Bashir case was issued only after an appeal.
Step: Securing Custody of Suspects
Lead Actor: States
The ICC does not have its own police force, so it relies on States to enforce the arrest warrants that it issues (or on the suspect to present themselves to the Court voluntarily). The 124 States that have joined the ICC are under a legal obligation to enforce the Court’s warrants (Art. 86) but historically it has been challenging to secure the cooperation of States. (Currently, 17 individuals subject to arrest warrants remain at large.) The ICC does not conduct trials in absentia so the case cannot progress to trial until the suspect is in the custody of the ICC.
Historically, the time taken to secure custody has ranged from just days (warrants issued under seal for suspects in the Central Africa Republic case were executed by Belgium, The Netherlands, and France three days after issuance) or months (Congolese warlord Thomas Lubanga was surrendered to the Court by Congolese authorities one month after a warrant was issued under seal), to many years.
High profile suspects still at large include Uganda Lord’s Resistance Army warlord Joseph Kony (warrant issued July 2005), Sudanese President Omar al-Bashir (warrant issued March 2009), and Russian President Vladimir Putin (warrant issued March 2023).
Step: Initial Appearance
Lead Actor: Pre-Trial Chamber
If a suspect is transferred into ICC custody or voluntarily appears, the next step is for them to have their Initial Appearance before the Court. This happens within a few days of their arrival in The Hague. The Pre-Trial Chamber will confirm the suspect’s identity, make sure the suspect understands the charges against them, and their rights, including the right to apply for interim release pending trial (Art 60(1)).
Step: Confirmation of Charges Hearing
Lead Actor: All parties before the Pre-Trial Chamber
At the Confirmation of Charges hearing, the Prosecution must present sufficient evidence to justify the case moving forward to trial. The suspect’s counsel, as well as potentially a legal representative of the victims, participate in the hearing. The Confirmation of Charges hearing has historically taken place around six months to a year after the Initial Appearance. (In exceptional circumstances, pursuant to the requirements of Art 61(2), the Confirmation of Charges hearing can proceed in the absence of the suspect. In such a scenario, the suspect’s interests will be represented by counsel.)
Step: Decision on Confirmation of Charges
Lead Actor: Pre-Trial Chamber
It typically takes around three months for the Pre-Trial Chamber to decide whether to confirm the charges, but it can take longer in complex cases. In making its decision, it has to determine whether there is “sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”(Art 61(7)). If it confirms the charges, it sets a date for trial.
Pre-Trial Chambers have declined to confirm some or all of the charges presented by the Prosecutor in the past.
Defendants who have been summoned to the court have previously appeared voluntarily in person to contest the charges against them. For example, then-Kenyan President Uhuru Kenyatta took this option (and also appeared via videolink for a pretrial status conference and in-person for another). In that case, the prosecution eventually withdrew the charges before trial, but as a result of alleged widespread witness tampering and without prejudice to bringing a new case if additional evidence became available.
Step: Opening of Trial
The opening of a trial typically occurs around nine months to two years after the Confirmation of Charges.
Editor’s note: Readers may also be interested in Tom Dannenbaum, Nuts & Bolts of the Int’l Criminal Court Arrest Warrant Applications for Senior Israeli Officials and Hamas Leaders, Just Security, May 20, 2024