When Will the OTP Seek to Confirm the Charges Against Netanyahu and Gallant?

This is not a rhetorical question. The arrest warrants for Netanyahu and Gallant were issued on 21 November 2024, 21 months ago. The next step is to confirm the charges contained in the arrest warrants. Yet there is no indication that the Deputy Prosecutors, who have been in charge of the OTP since May 2025, have any intention of doing so. That needs to change — and it needs to change as soon as possible.

There are two basic reasons why the OTP should immediately seek to confirm the charges against Netanyahu and Gallant.

The first is that it would be the most effective way – and probably the only way – to rebut the endless stream of allegations, made both by Israeli government officials and by pro-Israeli activists, that the arrest warrants lack an adequate evidentiary foundation. After Karim Khan announced in May 2024 that he had applied for the arrest warrants, for example, Netanyahu said publicly that “[t]he whole thing of a deliberate starvation policy is ridiculous. It’s put forward by a guy who doesn’t check his facts.” Similarly, the High Level Military Group, a group of retired senior military officers claimed in an ICC filing that “accusations of an intent to starve civilians by the Israeli prime minister and minister of defense are unsupported by all available evidence, most importantly by the actual conduct of IDF operations in and around Gaza.”

Those allegations, and the innumerable others like them, are baseless. The problem is that the OTP has not been able to effectively rebut them, because nearly all of the relevant information – the applications for the arrest warrants; the supporting evidence; the Pre-Trial Chamber’s decision to issue the warrants on nearly all of the charges – is confidential.

That would change if the OTP sought to confirm the charges against Netanyahu and Gallant. Art. 61(5) of the Rome Statute requires the OTP to support each charge at a confirmation hearing with “sufficient evidence to establish substantial grounds to believe that the person committed the crime charged.” That presentation is based on the evidence submitted pursuant to Rule 121(3) of the Rules of Procedure and Evidence, which requires the OTP to provide the suspect(s) and the Pre-Trial Chamber with “a detailed description of the charges together with a list of the evidence on which the Prosecutor intends to rely at the hearing.”

For present purposes, what is particularly important about confirmation of charges is that most, if not all, of the OTP’s voluminous evidence would be presented publicly during a confirmation hearing. Rule 122(7), for example, provides that “[d]uring the hearing on the merits, the Prosecutor and the person shall present their arguments in accordance with article 61, paragraphs 5 and 6.” The same procedure applies to confirmation hearings held in absentia – Rule 126(1).

To be sure, some of the OTP’s evidence might be presented in a closed session. The presumption, however, is that evidence will be presented publicly. Here is what Judge Aitala said at the beginning of the Mokom hearing:

I will recall – and this is especially for the public – that while the general rule is that the hearing is public and therefore is held, as now, in open session, it might occur that, with a view to protecting certain private or confidential information, particularly regarding victims and witnesses, parts of the hearing will be held in private session upon decision of the Chamber.

Presenting the evidence against Netanyahu and Gallant at a public confirmation of charges hearing would allow the OTP to demonstrate that the endless attacks on the arrest warrants are baseless. And it would have that opportunity even if – as seems overwhelmingly likely – Netanyahu and Gallant refused to attend the hearing. Indeed, in Kony, the OTP actually described one benefit of proceeding in absentia as the “public airing of the evidence.”

There is a second reason the OTP should welcome the opportunity to confirm the charges against Netanyahu and Gallant: it would allow the Deputy Prosecutors to silence critics who do not believe they are committed to pursuing the Palestine investigation. That scepticism seems warranted: the arrest-warrant applications for Netanyahu and Gallant were prepared under Karim Khan, and reporting by Sondos Asem at Middle East Eye indicates that Khan, not the Deputy Prosecutors, prepared applications for Ben-Gvir, the National Security Minister, and Bezalel Smotrich, the Finance Minister. So if any progress has been made on the investigation by the Deputies, there is no public record of it. An in absentia confirmation hearing for Netanyahu and Gallant (or, frankly, even for one of them) would thus go a long way to reassuring the public that the Deputies do not want the Palestine investigation to quietly disappear into the dustbin of history.

Given these advantages – rebutting critics who believe the arrest warrants are baseless and critics who don’t believe the Deputies care about the Palestine investigation – what possible reason is there for the OTP not to immediately seek to confirm the charges against Netanyahu and Gallant?

The obvious response is, of course, the one alluded to above: they are not in ICC custody and would never voluntarily appear at a confirmation hearing. A couple of years ago, that response might have been persuasive. But no longer: in June 2025, the Appeals Chamber held that the Rome Statute permits confirmation hearings to be held in absentia. Following that decision, the Pre-Trial Chamber conducted a three-day confirmation hearing for Joseph Kony in his absence and then confirmed all 39 charges against him.

To be sure, it is an open question whether the Appeals Chamber’s decision in Kony applies to Netanyahu and Gallant’s situation. The factual circumstances are obviously different: Kony has been at large for almost two decades, and his present whereabouts are unknown; Netanyahu and Gallant live openly in Israel but Israel refuses to surrender them. That difference may have legal importance, because Art. 61(2)(b) of the Rome Statute permits a confirmation hearing to be held in absentia only when the suspect “has fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court.” The expression “fled or cannot be found” applies more literally to Kony’s situation than to Netanyahu and Gallant’s.

That uncertainty should not cause the OTP to hesitate, however, because the Appeals Chamber’s reasoning suggests that in absentia confirmation is not limited to suspects who, like Kony, are literally in hiding. The key paragraph is this one:

45. The Appeals Chamber notes that, contrary to the Defence’s contention, what is decisive in terms of the application of article 61(2)(b) of the Statute is that at the time of the proposed hearing, the person has fled or cannot be found despite all reasonable steps having been taken to secure his or her appearance. The reasons as to why the person either fled or cannot be found are not material. In essence, the Defence’s interpretation places undue emphasis on the suspect’s reasons for non-availability, rather than the fact of unavailability. The Appeals Chamber considers the Defence’s proposed inclusion of a distinction based on reasons for nonavailability is beyond the ordinary meaning to be given to the terms used in article 61(2)(b) of the Statute.

The argument for extending Kony to Netanyahu and Gallant’s situation is straightforward: because Israel will not surrender them and they avoid entering states that would be obligated to surrender them, Netanyahu and Gallant are no less factually unavailable to the Court than Kony. The reasons why they are unavailable – Kony is in hiding; they are deliberately evading the Court’s jurisdiction – are irrelevant. In both situations the suspect(s) cannot be brought before the Court despite the Court having taken all reasonable steps to secure their appearance.

The argument is not a slam dunk. The various Chambers might want to avoid the spectacle of an in absentia confirmation hearing for Netanyahu and Gallant, and citing the factual differences between their situation and Kony’s would be an easy way to do so.  But that possibility is not a reason to hesitate, because the OTP has nothing to lose by trying. If the OTP wins the argument, it will be able to rebut both the critics who think Netanyahu and Gallant have done nothing wrong and the critics who think the Deputy Prosecutors are not committed to the Palestine investigation. If the OTP loses the argument, it will at least have rebutted the critics in the latter category.

The time to act is now. The Palestine investigation deserves no less.