Netanyahu arrest warrant and the ICC: Is the delay a denial of justice?

It has been five months since the prosecutor of the International Criminal Court (ICC), Karim Khan, requested an arrest warrant for Israeli and Hamas leaders over allegations of war crimes and crimes against humanity during Israel's war on Gaza and the 7 October Hamas-led attack on southern Israel.

On 20 May, Khan announced that his office filed an application for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif. 

With the killing of the three Hamas leaders over the past year, only Netanyahu and Gallant are now the subject of the warrants.

Haniyeh, the head of Hamas' political wing, was assassinated in Iran on 31 July, and Israel said in August that it killed Deif, a claim denied by Hamas. The prosecutor subsequently withdrew Haniyeh's arrest warrant. Sinwar, Haniyeh's successor, has been killed in Gaza, as announced by the Israeli army on Thursday and confirmed by Hamas.

Khan's application marked a significant precedent for the ICC, as it is the first instance in the court's 22-year history that the prosecutor has sought arrests for Western-allied senior officials.

The failure to issue the warrants has prompted widespread criticism of the court, with international law scholars and professionals warning its raison d'etre of ensuring accountability for the most egregious crimes is at stake.

Moreover, as outlined in the preamble of the Rome Statute that founded the ICC, the court's purpose is not only to hold suspects accountable, but also to prevent and deter these crimes. 

Why is the court being criticised?

Since the court's establishment in 2002, ICC judges have issued 55 arrest warrants in 32 cases. Twenty-one people have been detained in the ICC detention centre in The Hague and have appeared before the court, while 26 people remain at large. 

On average, it took the pre-trial chamber two months to issue a warrant after a request by the prosecutor. 

Scholars and lawyers representing victims who spoke to Middle East Eye have denounced the delay as unreasonable, given the gravity of the situation in Gaza, with aid groups now warning of the threat of an imminent famine across the enclave and extermination of 400,000 besieged civilians in the north.

'Every Palestinian victim expected the court to act as promptly as possible when the genocide started last October, because the court has done the same in other contexts'

-Triestino Mariniello, lawyer 

Israel is also facing accusations of genocide before the International Court of Justice, in a case brought by South Africa in December. The application alleges that Israel has committed acts intended to destroy Palestinians, who are defined as a national, racial and ethnic group, in whole or in part. It also alleges that Israel had failed to prevent or punish such acts, in contravention of the 1948 Genocide Convention.

"Every Palestinian victim expected the court to act as promptly as possible when the genocide started last October, because the court has done the same in other contexts, most recently in Ukraine," said Triestino Mariniello, a member of the legal team representing Palestinian victims before the ICC.

The judges issued an arrest warrant for Russian President Vladimir Putin within three weeks of the prosecutor’s request in the Ukraine situation. 

"Compared to the speed with which an arrest warrant was issued for Putin, the contrast is very, very stark," said Giulia Pinzauti, an international law professor at Leiden University.

"This is particularly concerning for the victims. Justice delayed is justice denied," she said. 

Since Khan's request in May, over 7,000 more Palestinians have been killed in Israeli attacks, bringing the death toll to more than 42,600, most of them women and children. Israel has also expanded its ferocious war to Lebanese territory, killing more than 2,376 people between 8 October last year and 16 October 2024. 

"The delay, compared to the Putin warrant, seems to support criticisms of ICC as subject to Western pressure, and hence not an objective institution but rather a policy instrument of the global West," said Richard Falk, an emeritus professor at Princeton University and former UN special rapporteur on human rights in occupied Palestine. 

What has caused the delay to the warrants?

Many attribute the delay in issuing warrants to the pre-trial chamber's opening of the opportunity to file amicus curiae (Latin for: friends of the court) briefs, which are written submissions to the court that provide legal arguments and recommendations on a case. 

This began on 10 June, when the UK government filed a request with the pre-trial chamber to provide a written submission challenging the court's jurisdiction on Israeli nationals in circumstances where Palestine has no jurisdiction over Israeli nationals. 

Israel is not a member of the ICC, but the state of Palestine was granted membership in 2015.

The ICC has jurisdiction to prosecute nationals from the 124 member states who signed the Rome Statute, as well as individuals who commit crimes within those territories.

Therefore, the court can investigate Israeli individuals for crimes committed in the occupied Palestinian territories, which include Gaza, the West Bank and East Jerusalem. 

When the chamber accepted the request with a deadline of submission by 12 July, the UK then requested an extension until 26 July, then dropped the request under the new Labour government.

The UK’s request, however, was followed by over 70 other requests to the court, including by Israel and its allies as well as lawyers acting on behalf of Palestinian victims. 

It is uncommon for submissions to be made at this stage of proceedings, according to Pinzauti, who co-authored a submission to the pre-trial chamber to refute arguments about the court's lack of jurisdiction in this case. 

"When they issued this call for applications, we were really in two minds about it," she told MEE. Pinzauti explained that the delay was inevitable because making submissions is a two-step process whereby the prosecutor has to reply to the submissions. 

But this process has come to an end, said Pinzauti. It remains unclear why the judges have yet to decide on the issuance of the warrants.

How did Israel and its allies react to the warrant request?

Prior to the prosecutor's request as well as in the five months that followed, Israel and its main ally - the US - rejected the warrants and challenged the court's jurisdiction.

US Secretary of State Antony Blinken said on 20 May that his administration rejected the "equivalence" between Hamas and Israel in this case, and that the court had no jurisdiction, citing "the Prosecutor's rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed".

The Israeli government had similar arguments. Netanyahu said: "I reject with disgust the comparison of the prosecutor in The Hague between democratic Israel and the mass murderers of Hamas."

In September 2024, Israel submitted two legal briefs to the ICC, challenging the legality of the arrest warrant requests against Netanyahu and Gallant, as well as the court's jurisdiction.

It mainly reiterated the longstanding view of the Israeli government that Palestine is not a state, and that the court had not upheld the principle of complementarity as set out in Article 17 of the Rome Statute.

The article states that national courts have the primary responsibility for investigating and prosecuting international crimes, meaning the ICC can only exercise its jurisdiction when national courts are unwilling or unable to prosecute.

Meanwhile, investigations published by The Guardian and +972 Magazine on 28 May revealed that the ICC had been under a campaign of espionage and threats for nine years by Israeli intelligence agencies. The campaign included hacking the phones of Khan and his predecessor Fatou Bensouda, and threatening the latter to drop her war crimes investigations on the situation in Palestine, launched in 2021.

Additionally, Zeteo revealed that US Republican senators had threatened sanctions against Khan if arrest warrants were issued, including consequences for the court’s staff and their families. 

Why do judges need to confirm the arrest warrant?

According to Article 58 of the Rome Statute, the treaty that established the ICC, the court's pre-trial chamber is tasked with examining evidence brought by the prosecutor and ensuring a number of procedural requirements.

These include the presence of reasonable grounds for the alleged crimes, and that the arrest is necessary to "ensure the person's appearance at trial", "ensure that the person does not obstruct or endanger the investigation or the court proceedings", or to "prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances".

How long does it take the court to issue a warrant?

The ICC does not have a specific timeframe for issuing warrants. The timing is up to the discretion of judges.

In previous cases, it took between several weeks and almost a year to issue a warrant. In around 61 requests for arrest warrants by the prosecutor, it took the chamber an average of two months to make a decision, according to Hague-based journalist Molly Quell.

In this case, comparisons have been made with the arrest warrants for other heads of state. 

For example, on 22 February 2023, Khan submitted applications for arrest warrants for Russian President Vladimir Putin and his children's rights commissioner Maria Lvova-Belova in the context of the situation in Ukraine. The warrants were confirmed 23 days later later, on 17 March, as Khan said that the judges were satisfied that there were reasonable grounds to believe that the two suspects were responsible for the war crime of the deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation.

The pre-trial chamber also issued arrest warrants for Russian military generals roughly one month after Khan's request on 2 February 2024.

The ICC was equally quick to issue a warrant for the former President of the Ivory Coast Laurent Koudou Gbagbo on 23 November 2011, 30 days after the prosecutor's application.

In Sudan, however, it took longer. For example, it took the pre-trial chamber 233 days to confirm an arrest warrant for then-Sudanese President Omar al-Bashir on 4 March 2009.

The situation in Palestine imposes urgency, however, said Luigi Daniele, an international lawyer and university professor.

"Considering the gravity of the crimes that have been committed since 7 October, and even prior to that since the ICC investigation opened in 2021, the request of the prosecutor in May was already late," he told MEE.

"Without accountability, alleged offenders are strengthened in their perception of being above the law and are encouraged to commit more atrocity crimes."

What if the arrest warrants are confirmed?

It is highly unlikely that the chamber will decline the request. Requests for warrants have in the vast majority of cases been granted.  

If the arrest warrants are confirmed by the chamber, all 124 member states of the Rome Statute will be under an obligation to arrest Israeli leaders and hand them over to the court in the Hague. A trial cannot commence in absentia, as stipulated in Article 63 of the statute.

'The fact that Israel and the US have reacted so strongly to discredit the mere recommendation does suggest that they matter'

- Richard Falk, law professor

But the court does not have enforcement powers. It relies on the cooperation of member states to arrest and surrender suspects.

Signatories to the statute include the UK, France, Germany and Spain and, in the Middle East, Jordan, Tunisia and Palestine.

However, certain countries, notably the US, China, India, and Russia, are not signatories. Most countries in MENA, including Turkey and Saudi Arabia, are not signatories.

Netanyahu, who, with Gallant, is currently based in Israel, travelled to New York in September to make a speech at the UNGA.

It is likely that Netanyahu and Gallant will restrict their travels, as Putin did following the ICC arrest warrant against him. 

A future Israeli government may also choose to hand them over to the Hague. 

Moreover, states that are not members of the Rome Statute may choose to surrender the suspects to the Hague, bar them from entering their territories, or prosecute them under their domestic jurisdictions. 

"It will be very difficult for third states to ignore the existence of arrest warrants," said Daniele.

"The warrants could also serve as a potential asset for Israeli civil society and opposition groups advocating for accountability regarding the crimes committed in Gaza."

But regardless of whether arrest warrants are enforced in the future, their issuance will carry significant legal and political weight, according to Falk.

"The fact that Israel and the US have reacted so strongly to discredit the mere recommendation does suggest that they matter in the important struggle for legitimacy in international relations," he told MEE. 

"International law, if authoritatively applied, has an important legitimating role in the formation of public opinion and in shaping the outcome of high profile international conflicts even when defied."