A Brief Note on Arrest Warrants and Summonses at the ICC

Note: I serve as Special Adviser to the ICC Prosecutor on War Crimes.

Twitter is awash with commentary about tweets issued by the Registry that explain the difference between arrest warrants and summonses. Many people have speculated that perhaps the tweets are related to the Palestine situation. Any such speculation is unwarranted, as the tweets are part of a long-scheduled series explaining how the ICC works and are not connected to any situation or any specific judicial development.

Given the speculation, however, it is worth explaining how arrest warrants and summonses work. As the Prosecutor made clear in his written statement, he has requested the Pre-Trial Chamber issue arrest warrants for the five suspects, not summonses. Because he has done so, the Pre-Trial Chamber has a binary choice regarding each specific arrest-warrant application: issue the warrant (on some or all of the charges) or reject the application.

The PTC will issue an arrest warrant for a particular suspect if it believes the requirements of Art. 58(1) of the Rome Statute are satisfied:

1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:

(a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and

(b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

If either requirement is not satisfied, the PTC will reject the application in toto. And that is true even if it concludes that the “reasonable grounds” requirement is satisfied but that arrest is not necessary to ensure the suspect’s appearance As the Appeals Chamber made clear in the Katanga case, the PTC has no authority to issue a summons instead of an arrest warrant when the Prosecutor has sought only the latter (emphasis added):

A summons to appear is not at issue in proceedings for the arrest of the person. Nor is a summons to appear an alternative open to the Chamber, upon application of the Prosecutor, for the issuance of a warrant of arrest. A summons to appear is an alternative only when the Prosecutor seeks to secure the attendance of the person before the Court through that process. A summons to appear can only be issued on the application of the Prosecutor before the Pre-Trial Chamber, as provided for in article 58 (7) of the Statute; such a measure may be authorised if the Pre-Trial Chamber is satisfied that this is “sufficient to ensure the person’s appearance”. In proceedings for the issuance of a warrant of arrest, the question the Chamber has to address is whether arrest is necessary for any of the reasons specified in article 58 (1) (b) of the Statute.

I hope this post helps readers understand the arrest-warrant process.