The International Criminal Court’s unexpected decision to allow numerous countries to give their opinions to judges about possible arrest warrants for Israel’s prime minister Binyamin Netanyahu, his defence secretary, and three leaders of Hamas is likely to postpone the much-anticipated verdict for several months.
Critics of the court have inferred that this recent development may be a tactical move, showcasing increasing apprehensions within the court regarding the legal basis of its jurisdiction in this case. This also brings up the potential scenario wherein the prerequisite chamber of three judges might eventually turn down the warrant request.
Karim Khan KC, the prosecutor of the court, lodged the warrant applications against Netanyahu, his Defence Minister, Yoav Gallant, and the Hamas leaders Yaya Sinwar, Mohammed Al-Masri, and Ismail Haniyeh in May. Khan claimed that there were valid reasons to suspect that these individuals were culpable for war crimes and crimes against humanity.
The grave offences that the prosecutor referred to were alleged to have been carried out during the Hamas-initiated attack against Israel on October 7th, succeeded by a brutal air and ground strike on Gaza by Israel.
The unforeseen warrant request stirred up a whirlpool of controversy, attracting criticism from both the Israeli and Palestinian sides for Khan’s choice to apply for the arrest warrants.
US President Joe Biden deemed as outrageous the move to seek warrants against Netanyahu and Gallant, while Hamas viewed it as an effort to put the victim on the same level as the perpetuator by aiming at Palestinian resistance leaders.
The warrant application last month incited the UK to submit an “amicus curiae brief,” an opinion expressed by a court’s “friend” not directly associated with the case but having valuable experience or insight to contribute.
A brief from the United Kingdom, which was later retracted by the newly-instated Labour government, called into question the International Criminal Court’s (ICC) authority to prosecute Israeli nationals. This brief was acknowledged by the court and resulted in the current inundation of summaries, reflecting a multitude of viewpoints, conjectured to have been provided by about 70 states, entities, and individuals.
Countries such as the United States, Germany, and Hungary, who each lodged requests, have publicly voiced their disapproval of Khan’s decision to apply for the warrants. Conversely, Spain, Ireland, Brazil, and South Africa, have been frank in their endorsement for a probe into the purported atrocities against Palestinians.
The court has earmarked August 6th as the cut-off date for applicants to submit 10-page written submissions. The strain on the ICC stems not just from the need for judges to scrutinise the documents in-depth, but also to allow the prosecutor ample time to compose responses where necessary.
Israeli law academics, Yuval Shany and Amichai Cohen, bestowed with the authority to present a joint statement, have opined that the court’s decision to expand consultations marks an “unusual progression” at this stage of proceedings. They believe this move signals the court’s worry over jurisdictional and admissibility concerns.
Nevertheless, it’s also worth noting that in several high-profile cases in the past, a noticeable time lapse existed between the request for arrest warrants and their actual issuance – a process not hindered by the delays. For instance, the prosecution of former Sudanese president Omar al-Bashir required an eight-month wait between the initial warrant request in July 2008 and the pre-trial chamber’s approval in March 2009.
In ICC cases, victims’ resilience is always grounded in optimism. The warrant against Bashir was granted, but even 15 years on, Bashir has managed to evade capture.