The surprise move by the International Criminal Court in recent days to allow scores of states to submit their views to judges on whether they believe arrest warrants should be issued for Israeli prime minister Binyamin Netanyahu, his defence minister and three Hamas leaders is certain to delay the court’s tensely awaited decision, probably for months.
Some critics of the court suggest the latest decision may even be a strategic one, indicating growing concerns within its walls about the legitimacy of its jurisdiction in the case – and raising the possibility that the request for warrants could ultimately be rejected by the pre-trial chamber of three judges.
In May, the court’s prosecutor, Karim Khan KC, applied for the warrants against Netanyahu; his defence minister, Yoav Gallant; and Hamas leaders Yaya Sinwar, Mohammed Al-Masri and Ismail Haniyeh arguing there were reasonable grounds to believe that they bore criminal responsibility for war crimes and crimes against humanity.
Those crimes, the prosecutor alleged, were committed during theHamas-led attack on Israel on October 7th, and the ferocious Israel air and ground assault on Gaza that followed.
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The unexpected application caused a storm of controversy, with both sides, Israeli and Palestinian, criticising Khan’s decision to seek the arrest warrants.
US president Joe Biden called the decision to seek the warrants against Netanyahu and Gallant “outrageous” – while Hamas described it as an attempt “to equate the victim with the executioner” by targeting Palestinian “resistance leaders”.
The application led to a decision by the UK last month to file what’s known as an “amicus curiae brief” – an opinion offered by a “friend of the court” who is not directly involved in the case but who may have valuable expertise or insight to offer.
That UK brief (later withdrawn by the newly-elected Labour government) challenged the legitimacy of the ICC’s jurisdiction over Israeli nationals, and was accepted by the court – leading to the current “deluge” of briefs reflecting a wide range of opinions, believed so far to have been offered by about 70 states, organisations and individuals.
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Some countries that have filed requests – including the United States, Germany and Hungary – have already criticised Khan’s decision to seek the warrants.
Others, such as Spain, Ireland, Brazil and South Africa, have been vocal in their support for an investigation into alleged crimes against Palestinians.
It is understood the applicants have been given until August 6th to file 10-page written submissions.
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The logistical problem for the ICC is not alone that the submissions must be reviewed in detail by the judges – but also that the prosecutor must be given an opportunity to reply in writing when he deems it appropriate.
Israeli law professors Yuval Shany and Amichai Cohen, who have been given permission to submit a joint brief, said the widening of consultation by the court was “an unusual step” at such a point in the proceedings. In their opinion, it indicated “the court’s concerns” over “jurisdiction and admissibility issues”.
However, it is equally true that other high-profile cases in the past have had significant delays between the request for arrest warrants and their issuance – which has not been prevented by the delays.
It took eight months, for instance, between the request for an arrest warrant against former Sudanese president Omar al-Bashir in July 2008 and the decision of the pre-trial chamber to approve it in March 2009.
The resilience of victims in ICC cases is always founded on hope. The warrant was issued but 15 years later Bashir has never been detained.
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