EXPLAINER - What next as ICC prosecutor seeks warrants for Israeli leaders?

By Rabia Ali

ISTANBUL (AA) – As expected, the backlash has been swift: leaders of the Western world, namely US President Joe Biden and UK Prime Minister Rishi Sunak, blasting the International Criminal Court (ICC) after its prosecutor applied for arrest warrants for top Israeli officials.

Karim Khan, the chief prosecutor of the ICC, is seeking warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for war crimes and crimes against humanity committed during Israel's ongoing Gaza offensive, which has now killed more than 35,600 Palestinians and wounded nearly 80,000 more.

Among the charges laid out by Khan’s team against the Israeli officials are extermination, using starvation as a method of warfare, willfully causing great suffering, and intentionally directing attacks against a civilian population.

In all, Khan has applied for arrest warrants for five people – Netanyahu, Gallant, and Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Diab Ibrahim al-Masri, also known as Mohammed Deif.

While Israel’s staunch allies like the US and UK criticized the move against Netanyahu and Gallant, countries around the world have come out in support, notably including European nations such as France and Belgium.

- What are the next steps?

The ICC prosecutor’s request has gone to pre-trial chamber, which will decide to issue the warrants or not.

In this case, it is the Pre-Trial Chamber I, currently composed of judges Iulia Motoc of Romania, Reine Alapini-Gansou from Benin, and Nicolas Guillou of France, according to Sergey Vasiliev, an associate professor at the University of Amsterdam’s Law Faculty.

“The decision involves an evaluation of whether there are reasonable grounds to believe that said individuals have committed the crimes within the ICC’s jurisdiction and whether the arrest (as opposed to a summons to appear) would be necessary,” he told Anadolu.

The judges will go through the alleged facts, evidence and other information given by the prosecutor to determine whether the legal standard of “reasonable grounds” has been met, he added.

- What outcome is expected and when?

Like many legal experts, Vasiliev also believes that Khan’s request for warrants will be approved.

“I expect the pre-trial chamber judges to grant the prosecutor’s request. I assume the investigation has been conducted thoroughly over the past seven months,” he said.

“The evidence … would be amply sufficient to meet the ‘reasonable grounds’ threshold and the applications would weave the alleged facts into a concise yet compelling legal narrative.”

He explained that the standard for “reasonable grounds” is not as demanding as others like “substantial grounds to believe.”

“Applications for arrest warrants generally are not expected to provide an elaborate analysis of the evidence and any legal issues,” he said.

There is no set timeframe for ICC judges to make their decision on arrest warrants, but as seen in previous cases, it could range “from a couple of weeks to a couple of months,” according to Vasiliev.

He cited the prominent 2023 case of Russia’s President Vladimir Putin and the Russian Presidential Children’s Rights Commissioner Maria Alekseyevna Lvova-Belova, when an ICC pre-trial chamber “needed less than a month to grant the prosecutor’s request to issue arrest warrants.”

Given the “urgency of the present matter, the high-profile character of the cases against the Hamas and Israeli leadership, and the dire nature of the humanitarian situation on the ground in Gaza,” Vasiliev said he expects a decision “within three to six weeks.”

- Can the application be rejected?

While the general consensus seems to be that Khan’s request will be approved, Vasiliev explained that there is a possibility that the judges do not grant “the applications of the prosecutor in whole or in part, for example, in relation to some of the charges.”

If that happens, Khan may appeal the decision, but would first need permission from the chamber to do so, as there is “no automatic right to appeal for arrest warrant decisions,” he said.

To get the right to appeal, the prosecutor “must show that the decision concerns an issue significantly affecting the fair and expeditious conduct of the proceedings or the outcome of the trial, and the immediate resolution of which … may materially advance the proceedings,” said the professor.

- Can Khan apply for more arrest warrants?

In his statement on Monday, the ICC prosecutor clarified that the investigation being carried out by his office is continuing and they are “advancing multiple and interconnected additional lines of inquiry.”

Khan asserted that his team “will 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.”

On this, Vasiliev pointed out that in the current application “some possible charges are conspicuous by their absence, most notably genocide.”

“The war crimes and crimes against humanity charges in relation to which the arrest of the five persons is sought, overall reflect the information in the public domain, and there was an abundance of the relevant data the prosecutor could draw upon to complement any evidence his office may have collected from eyewitnesses,” he said.

“But the current lists could be expanded still and more warrant applications may be on the way. The present selection of the charges is not necessarily the last word on the matter.”

- How are the warrants issued and what happens then?

If the judges grant the request, arrest warrants may be issued as a public document or under seal, or there could be an announcement from the pre-trial chamber without publishing the document itself, as was the case with Putin and Lvova-Belova, explained Vasiliev.

“If the decision itself or the fact of its issuance is rendered public, the relevant individuals and states will be put on notice,” he said.

In his particular case, he expects the chamber “will issue public decisions or make public the fact that it grants, or not, the prosecutor’s applications.”

“If it indeed grants the applications and goes public, the chamber will at least specify the names, the charges (and provide a short summary of underlying factual allegations), and the modes of liability with which the persons would be charged,” he said.

“In due course, the warrants of arrest are to be notified to the relevant persons by way of personal service.”

When the ICC issues arrest warrants for any person, all 124 of the court’s signatory countries are obliged to arrest and hand over that individual if they set foot on their territory.

However, states that are not party to the ICC’s founding Rome Statute, such as Israel and the US, do not have any such obligation.

Vasiliev stressed that “state cooperation is essential” since the ICC does not have a police force of its own.

“Therefore, if and when the decision on the warrants is issued, the court will transmit the requests for the arrest and surrender of the persons to any state on the territory of which they may be found,” he explained.

These requests can be sent confidentially and through diplomatic or other channels.

“The requested state is expected to consult with the ICC if the person challenges their surrender in a national court,” said Vasiliev.

“That state is meant to check whether the (ICC) has already issued a ruling on the admissibility of the case and may postpone surrender until such a ruling is rendered and, if the case has been ruled admissible, it should execute the surrender request.”