Delays, Interference, and Espionage: The ICC’s Struggle with Arrest Warrants in the Situation in the State of Palestine

[Dr Jasmin Johurun Nessa teaches at the University of Liverpool and is the Co-General Editor of the Journal on the Use of Force and International Law’s Digest of State Practice.]

Delays and Politicisation: The ICC’s Path to Justice in Palestine

On 20 May 2024, the ICC Prosecutor announced that applications for arrest warrants had been filed with the Pre-Trial Chamber (Chamber) for Israeli Prime Minister Benjamin Netanyahu, Defence Minister Yoav Gallant, and three Hamas leaders in the situation in the State of Palestine. These filings marked a pivotal moment in the Court’s investigation into alleged crimes in Palestine, signalling a significant step towards justice. However, the path to justice has faced continued obstruction and delay.

The Chamber granted the UK’s request to submit written amicus curiae observations. This request set the stage for further unjustified delays, as had been warned. It is arguable whether the UK even had the legal standing to make such a request, which de facto amounted to a challenge of the Court’s jurisdiction in this situation. According to Article 19(2)(b) of the Rome Statute, indeed, only states with jurisdiction over the case, such as Israel or Palestine, may challenge the Court’s jurisdiction.

The UK’s request, ostensibly focused on the Court’s jurisdiction over Israeli nationals, was granted an extension, only for the UK to withdraw the filing after a change in Government. However, by that point, the damage had been done. The Chamber’s decision opened the floodgates for a wave of amicus curiae submissions, many of which introduced unrelated arguments, assumptions about unseen evidence, and political rhetoric into the legal process. Just as troubling is the lack of transparency surrounding this process. The over 70 requests for amicus curiae submissions were kept secret by the Chamber, and, except for the UK’s request, their content remains shrouded in secrecy. This raises serious concerns: How is it possible that the Chamber accepted requests for amicus curiae submissions that are completely unrelated to these proceedings, and why are these requests hidden from public scrutiny?

There are significant concerns with the manner in which the judges are approaching these proceedings. The Court’s handling of the process has become increasingly opaque and lacks transparency. This could be viewed as a rewriting of the Court’s “judicial grammar”, reflecting the establishment of new procedural practices that, rather than promoting transparency and legal clarity, appear to reinforce the exceptionalism that has long characterised the Court’s approach to the Israeli-Palestinian setting.

Compounding these delays, last month the Israeli Government submitted its own challenge to the Court’s jurisdiction, further stalling the issuance of arrest warrants. Initially, this submission was not made publicly available, heightening concerns over the lack of transparency in these proceedings. However, this week, the ICC has made Israel’s responses on jurisdiction and notice public, enabling analysis of the arguments presented.

The ICC Targeted: Threats and Espionage

The gravity of the situation extends beyond delays and concerns of political interference. The ICC is operating in a climate of unprecedented external pressure and direct threats. Revelations from +972 Magazine and The Guardian exposed a nine-year-long campaign of espionage and surveillance conducted by Israeli intelligence agencies, targeting the ICC and its officials. This includes reports that former ICC Prosecutor Fatou Bensouda was personally threatened by the former head of Mossad, who warned, “You don’t want to be getting into things that could compromise your security or that of your family”.

The obstruction of the ICC has been marked not only by covert espionage but by overt political threats. On 24 April 2024, twelve US Republican Senators issued a letter to ICC Prosecutor Karim Khan, threatening sanctions and unspecified consequences for him, Court officials, and their families if arrest warrants were issued against Israeli leaders. Democratic Senator John Fetterman even warned that pursuing charges against Israeli officials would deliver a “fatal blow” to the ICC’s judicial and moral standing.

While political interference is not new to international justice, the rhetoric surrounding the Court’s Palestine investigation has been particularly aggressive. Not only has Israeli Prime Minister Benjamin Netanyahu released a video, implicitly encouraging interference with the ICC’s investigation, he has since further intensified his rhetoric, calling the ICC a “weapon of criminals and terrorists”. On 10 September 2024, Israel escalated its condemnation, accusing the Prosecutor of “pure antisemitism”.

Global Support Amidst Mounting Pressure

In the face of mounting pressure and unprecedented threats, the ICC issued a rare public statement, insisting that “all attempts to impede, intimidate, or improperly influence its officials cease immediately”. This firm stance has been echoed by a range of international actors who recognise the broader implications of such interference. UN experts, for instance, have warned that efforts to impede the ICC would have far-reaching consequences, not only for accountability in the Palestinian territories but for the international justice system as a whole. This concern was shared by Josep Borrell, High Representative of the European Union for Foreign Affairs and Security Policy, who forcefully denounced attempts to influence the Court:

“Enough is enough. When the International Criminal Court indicted President Putin, we applauded. So, either we respect the International Criminal Court or not. Stop trying to intimidate the judges of the ICC.”

Many states have also condemned the threats directed against the Court (see, for example, remarks by Luxembourg, Ireland, Romania, Liechtenstein, Bangladesh, Japan, and Ecuador). At the same time, other states have continued to express their support for the Court (see, for example, remarks by Switzerland, Liechtenstein, Bangladesh, Austria, Malta and the Nordic states). Chile, further reinforcing this commitment to the ICC, has asserted that “more countries must submit to the jurisdiction of the International Criminal Court”. This statement underscores the ICC’s continued vital role in upholding international justice, affirming its responsibility to remain steadfast in its mandate, even amidst mounting political pressure.

The Pre-Trial Chamber Must Resist Interference

The Chamber now faces a critical choice. It can either uphold its mandate by resisting political interference and ensuring equal access to justice for all victims, or it can yield to the pressures of powerful states, risking further erosion of its legitimacy. As Triestino Mariniello highlights in his Opinio Juris post, the integrity of the Court is on the line, and its ability to function as an independent judicial body hinges on its response to these challenges.

The international community has made clear: “the perpetrators of crimes against civilians must know that they will be brought to justice”. The Court must resist yielding to the pressures of powerful states and, instead, focus on its duty to deliver justice impartially. Every day of delay undermines this responsibility and casts doubt on the Court’s capacity to act without fear or favour. This moment presents the ICC with a unique opportunity to demonstrate that it can stand firm in the face of political pressure and deliver justice to victims without discrimination. But to do so, it must reaffirm its commitment to impartiality, transparency, and the rule of law. The Chamber’s response to these external forces will not only shape the outcome of this investigation but could ultimately define the future of the Court itself, making this a “test case for the Court’s credibility”.

No More Delays: Issue the Arrest Warrants

The delays in issuing arrest warrants in the situation in the State of Palestine reflect deeper concerns about the ICC’s ability to navigate mounting political pressures and direct threats to its independence. These delays, compounded by the politicisation of the legal process, risk undermining the Court’s fundamental role “in the fight against impunity”.

The longer the Chamber postpones its decision, the more its credibility as a guarantor of international justice erodes. By delaying the issuance of arrest warrants, the Court risks signalling an unwillingness — or perhaps even an inability — to exercise its mandate effectively. This indecision weakens the potential deterrent effect of the Court’s actions and raises serious questions about its commitment to accountability.

In this critical moment, the world expects the Court to act — not merely to reaffirm its values, but to issue the long-overdue arrest warrants. The 93 states that have publicly pledged to defend the ICC against external interference signal that the world stands behind the Court. It is now up to the Chamber itself to demonstrate its resolve. As Gaza Victims have powerfully reminded us, “justice delayed is justice denied”. The time to act is now.