“My Office submits that the evidence it has collected and examined supports reasonable grounds to believe” is the formula, and on Monday the prosecutor of the International Criminal Court used it in two directions in a single statement.
Karim Khan applied for arrest warrants against the prime minister and defense minister of Israel, and against three leaders of Hamas, in the same document, on the same day.
The date to look back at is 4 March 2009, when the court issued its first arrest warrant for a sitting head of state, and what that one turned out to mean is the most useful guide available to what this one will.
What happened in 2009
The court issued a warrant for Omar al-Bashir, then president of Sudan, over Darfur. It was the first time the institution had reached a serving head of state, and it was treated at the time as a threshold moment for international justice.
Bashir remained in office for another decade. He traveled during that period to several states party to the Rome Statute, which are legally obliged to arrest a person subject to a warrant, and was not arrested in any of them. The African Union advised its members not to cooperate. The court referred several states to its own oversight body for non-compliance, which is the entirety of what it can do.
He was eventually removed by his own military in 2019, for reasons having nothing to do with The Hague, and has still not been surrendered.
What the 2009 warrant did do
It would be wrong to conclude that it achieved nothing, and the effect is a narrow one that is visible only in aggregate.
It constrained movement. A head of state with an outstanding warrant plans travel around it, cancels visits, and requires assurances in advance. That is a real limitation on the conduct of foreign policy and it is imposed without anybody arresting anyone.
It also fixed a legal characterization. Once a court has stated reasonable grounds, every subsequent diplomatic exchange happens with that on the record, and states dealing with the person have to decide, explicitly, to set it aside.
So the instrument works as an encumbrance rather than as an enforcement mechanism, which is a real function and not the one the institution is described as having.
What is different this time
Three things, and they point in different directions.
The first is that the applications run both ways. Every previous situation of this profile has involved the court charging one party, which allowed the charged party to describe the institution as an instrument of the other side. Applying against a state’s leadership and against an armed group in the same statement removes that argument, which is plainly why it was done that way, and it has not prevented the argument being made anyway.
The second is jurisdiction, which is contested here in a way it was not over Darfur. Sudan is not a party to the Rome Statute and the situation was referred by the Security Council. Israel is not a party either, and the court’s jurisdiction here rests on Palestine’s accession, which Israel and several other states dispute. That dispute is live, it is legal rather than political, and the judges will have to address it.
The third is that these are applications rather than warrants. A pre-trial chamber decides whether to issue, on a timetable it controls, and the interval between application and decision is itself a period in which a great deal happens.
Why the court reached for this now
A prosecutor deciding to file has a set of considerations that are not purely evidentiary, and one of them is the court’s own position.
The institution has spent two decades being described as an instrument aimed at one part of the world, with the large majority of its completed cases concerning African states, and that criticism has cost it cooperation.
An application against the leadership of a Western-aligned state answers the criticism directly, and answering it is worth something to an institution whose only real asset is the belief that it applies the same rules to everybody. The cost is that it also guarantees a confrontation with states whose support the court needs.
That is a genuine institutional bet rather than a legal step, and it is being made by a prosecutor rather than by the states that created the court.
What the instrument cannot do
The court has no police force. It has never had one and was not designed to have one.
Every arrest it has ever secured happened because a state chose to hand somebody over, usually after a change of government made the person expendable. That is the mechanism, and it means the effective question about any warrant is not whether it is legally sound but whether there will ever be a government willing to execute it.
For the Hamas leaders named, that is complicated by the fact that two of them were, at the time of the application, not in territory any cooperating state controls. For the Israeli officials named, it depends on states party to the statute and on what they decide to do if one of them lands at their airport.
What happens if the warrants issue
Worth setting out because it is concrete, unlike most of this.
A warrant creates an obligation on the 124 states party to the Rome Statute to arrest the named person if they are on that state’s territory. It does not create an obligation on anybody else, and it does not authorize anyone to go and get them.
In practice the effect is a map. Large parts of Europe, South America, Africa and Asia become places a named person cannot travel to without the host government deciding, publicly, not to comply. Several European governments were asked this week what they would do and gave answers ranging from a firm commitment to a refusal to speculate, which is itself the information.
Where this leaves everybody
With a filing, and a pre-trial chamber, and a wait.
The Bashir case is the precedent and it teaches a specific and limited lesson: a warrant of this kind constrains rather than compels, it lasts far longer than the government it was issued against, and it becomes operative only when somebody with custody decides it is convenient.
One further thing the record establishes: an application is not a finding of guilt and will be reported as one. Reasonable grounds to believe is the threshold for charging, which is a long way below the standard for conviction, and the distinction survives approximately a day in public discussion.
Fifteen years after Darfur, the man named in that first warrant has not been to The Hague. The document is still open. That is the record, and it is the record the applications filed on Monday will be added to.
