Can the OTP Withdraw the Netanyahu and Gallant Arrest Warrants?

In the wake of Prosecutor’s Khan’s removal from office, a number of people have asked me whether the current Deputy Prosecutors or the next Prosecutor could withdraw the arrest warrants for Netanyahu and Gallant. In this post, I will explain why I think the answer is formally no but practically yes.

To begin with, nothing in the Rome Statute gives the Office of the Prosecutor (OTP) the power to unilaterally withdraw an arrest warrant that has been issued by a Pre-Trial Chamber (PTC). On the contrary, Art. 58(4) explicitly provides that a “warrant of arrest shall remain in effect until otherwise ordered by the Court.” Formally, then, a duly-issued arrest warrant can only be terminated by the Pre-Trial Chamber. It cannot be unilaterally withdrawn by the OTP.

That said, the OTP still has the practical ability to force the Pre-Trial Chamber to terminate an arrest warrant the OTP no longer wants to pursue  The most straightforward situation is where no confirmation of charges hearing has been held. When that is the case, Art. 61(4) of the Rome Statute gives the OTP the authority to unilaterally withdraw charges against a suspect:

Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal.

Art. 61(4) does not condition the OTP’s decision to withdraw charges on Pre-Trial Chamber approval. After the confirmation of charges hearing, by contrast, the OTP can withdraw charges only with the permission of the Pre-Trial Chamber. That is Art. 61(9):

After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges.

Withdrawing charges is not the same as withdrawing an arrest warrant. But that would be a distinction without a difference if the OTP withdrew all of the charges against Netanyahu and Gallant, because the warrants would then cease to have any effect, per Art. 61(10) of the Rome Statute:

Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor.

There is, however, one legal uncertainty worth noting with regard to pre-confirmation withdrawal of charges. The Triffterer commentary on Art. 61 suggests that the Pre-Trial Chamber is not required to accept the OTP’s reasons for withdrawal, thus opening the door to judicial review under Art. 53 of the Rome Statute, which applies in general to decisions not to prosecute:

This notification, if it were to have any meaning, could be seen as allowing the PTC to discharge its functions under article 53(3) as the withdrawal of charges may effectively be considered as a decision not to proceed with the prosecution of the suspect (in relation to certain charges) pursuant to article 53(2).

I respectfully disagree with this interpretation of Art. 61(4). Given that Art. 61(9) explicitly requires the Pre-Trial Chamber to authorise any change in the charges after the confirmation hearing, it is difficult to understand why Art. 61(4) would not include similar language if the drafters wanted the PTC to have a similar power prior to confirmation. The absence of such language, in my view, strongly implies that, in the context of of amending or withdrawing charges, the drafters of Art. 61 wanted the OTP to have greater authority before confirmation than after it.

The correct interpretation of Art. 61(4) matters, because no confirmation of charges hearing has taken place for Netanyahu and Gallant, even though the Appeals Chamber decided more than a year ago that such hearings can be held in absentia. If Art. 61(4) is nothing more than a notification requirement, the Deputy Prosecutors currently have the right to withdraw the charges against Netanyahu and Gallant for any reason. They would simply need to notify the Pre-Trial Chamber of their decision and state their reasons. And the next Prosecutor would have the same right as long as the charges against the suspects had not been confirmed by the time he or she took office.

By contrast, if the Triffterer commentary is correct that Art. 53(2) and (3) apply when the OTP seeks to withdraw all of the charges against a suspect, withdrawing the Netanyahu and Gallant warrants would be less straightforward. Art. 53 essentially covers two situations in which the OTP declines to prosecute a suspect: (1) where the OTP either concludes that “[t]here is not a sufficient legal or factual basis to seek a warrant or summons” or determines that the case against the suspect is inadmissible; and (2) where the OTP concludes prosecuting the suspect would not be in the interests of justice. In the first situation, the Pre-Trial Chamber can ask the OTP to reconsider its decision not to prosecute but cannot order it to do so. In the second, however, “the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber” — which means, per Rule 110(2) of the Rules of Procedure and Evidence, that the OTP would have to proceed with the prosecution if the PTC didn’t agree with its assessment of the interests of justice.

I would be curious to see what reasons the OTP might give for withdrawing all of the charges against Netanyahu and Gallant. It would be impossible to argue that the law or facts are insufficient to obtain an arrest warrant, because the Pre-Trial Chamber has already granted the Netanyahu and Gallant warrants (and did so unanimously). Similarly, the OTP has repeatedly asserted that the cases against the two suspects are admissible — grave enough to investigate and not barred by (non-existent) domestic proceedings in Israel (complementarity).

Withdrawing all the charges against Netanyahu and Gallant, therefore, would require the OTP to argue that, despite the existence of the warrants, continuing the prosecutions would not be in the interests of justice. Any such argument would obviously be very controversial. Procedurally, though, what matters is that, if the Triffterer commentary is right (and, again, I don’t think it is), the Pre-Trial Chamber would still have the authority to reject the OTP’s request to withdraw the charges — in which case the arrest warrants would continue to be in effect.

It remains to be seen, of course, whether the Deputy Prosecutors or the next Prosecutor will try to withdraw the charges against Netanyahu and Gallant. Even if they have that power, they don’t have to use it. Moreover, instead of taking the reputational hit that would accompany formally withdrawing charges, the OTP could simply do nothing on the Palestine investigation. As the Appeals Chamber held in the Afghanistan situation, the Pre-Trial Chamber does not have the authority to tell the OTP how to allocate its resources.

I can’t predict the future of the Palestine investigation, although I do know that the Netanyahu and Gallant warrants exist only because Khan was brave enough to seek them. If the next Prosecutor comes from outside the OTP, he or she will be sanctioned unless all of the charges against the two suspects are immediately withdrawn — a powerful incentive to withdraw them. And if the next Prosecutor is one of the already sanctioned Deputy Prosecutors, well… perhaps an intrepid reporter could ask them why, if they are committed to the Palestine investigation, they have not yet sought to confirm in absentia the charges against Netanyahu and Gallant?