What Lies Behind the Arrest Warrants of the International Criminal Court?

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What Lies Behind the

Arrest Warrants of the International Criminal Court?

Dr. Denys Keshkentii, Ukrainian Attorney, Master of

International Law, CEO of Key Legal Factors (Netherlands)

March 16, 2025

 

 

Over the past two years,

the legal and political spheres have increasingly focused on the activities of

the International Criminal Court (ICC) and have closely monitored the responses

and consistency of this international institution in addressing global legal

transformations. Generally speaking, in terms of its existence, the ICC is a

relatively new entity, having been established only 25 years ago. According to

the ICC’s official website (https://www.icc-cpi.int), a total of 59 arrest

warrants have been issued during its existence as of the end of 2024. However,

it is my view that this number may be slightly higher, given that the internal

investigative activities of the ICC remain largely confidential, despite the

stated public nature of its general operations. As of March 16, 2025, the

number of arrest warrants has reached 60

(https://en.wikipedia.org/wiki/List_of_people_indicted_in_the_International_Criminal_Court).

 

Throughout the ICC’s

operations, arrest warrants have been issued in the following cases:

Israel–Hamas Case (2024)

- Benjamin Netanyahu,

Prime Minister of Israel.

- Yoav Gallant, former

Minister of Defense of Israel.

- Mohammed Deif, military

commander of Hamas.

Charges: Use of

starvation as a method of warfare, persecution, murder, and attacks on civilian

populations. The warrants relate to actions in Gaza from October 2023 to May

2024. Status: All

remain at liberty.

Sudan Case

  - Omar al-Bashir (two warrants, issued in

2009 and 2010). Dates of warrants: March 4, 2009, and July 12, 2010. Charges: Genocide, crimes against humanity (murder,

deportation, torture), and war crimes (attacks on civilians, pillaging) in

Darfur. Status:

Remains at liberty.

  - Abdel Raheem Hussein (2012). Date of

warrant: March 1, 2012. Charges: Crimes against humanity and war crimes,

including deportation and attacks on civilians in Darfur. Status: Wanted, at

liberty.

  - Ali Kushayb (2007) and others. Charges:

Genocide, crimes against humanity, and war crimes in Darfur, including murder,

deportation, rape, and torture. Status: Surrendered to the ICC in 2020,

convicted in 2024.

Mali Case

- Al-Hassan Ag Abdul Aziz (2018). Date of

warrant: March 27, 2018. Charges: War crimes and crimes against humanity,

including torture, persecution, and inhumane treatment in Mali. Status:

Detained and convicted by the ICC in 2024.

- Ahmad Al-Faqi Al-Mahdi

(2015). Charges: Destruction of cultural heritage (attacks on religious and

historical buildings in Timbuktu). Date of warrant: September 28, 2015. Status:

Convicted to 9 years of imprisonment in 2016.

Democratic Republic of

the Congo Case

- Germain Katanga (2007).

Charges: War crimes, murder, sexual violence. Status: Convicted in 2014.

- Thomas Lubanga Dyilo.

Date of warrant: February 10, 2006. Charges: Use of child soldiers. Status:

Convicted in 2012 to 14 years of imprisonment.

- Sylvestre Mudacumura.

Date of warrant: July 13, 2012. Charges: War crimes, including murder, rape,

and attacks on civilians. Status: Deceased in 2019; case discontinued.

Central African Republic

Case

- Jean-Pierre Bemba

(2008). Date of warrant: May 23, 2008. Charges: War crimes and crimes against

humanity in the Central African Republic. Status: Acquitted by the Appeals

Chamber in 2018.

Uganda Case

- Joseph Kony. Date of

warrant: July 8, 2005. Charges: War crimes and crimes against humanity,

including mass murder, sexual slavery, and use of child soldiers within the

Lord’s Resistance Army (LRA). Status: Wanted, at liberty.

- Dominic Ongwen. Date of

warrant: July 8, 2005. Charges: War crimes and crimes against humanity,

including murder, rape, and child abductions. Status: Convicted in 2021 to 25

years of imprisonment.

Libya Case

- Saif al-Islam Gaddafi.

Date of warrant: June 27, 2011. Charges: Crimes against humanity, including

murder and persecution during the Libyan civil war. Status: Wanted, at liberty.

Russia–Ukraine Case

- Vladimir Putin and

Maria Lvova-Belova. Date of warrants: March 17, 2023. Charges: Unlawful

deportation of children from occupied regions of Ukraine to Russia (war

crimes).

- Sergey Kobylash, Viktor

Sokolov, Sergey Shoigu, Valery Gerasimov: Charges: War crimes (attacks on

civilian objects, Article 8(2)(b)(ii) of the Rome Statute) and crimes against

humanity (Article 7(1)(k)). Status: All remain at liberty.

Côte d’Ivoire Case

- Simone Gbagbo. Date of

warrant: February 29, 2012. Charges: Crimes against humanity, including

persecution and rape. Status: Charges dropped in 2021.

Philippines Case (2025)

- Rodrigo Duterte, former

President of the Philippines. Date of warrant: March 7, 2025. Charges: Crimes

against humanity, including mass extrajudicial killings during the “war on

drugs” from November 1, 2011, to March 16, 2019, when he led the “Davao Death

Squad” and the national police. Status: On March 11, 2025, Duterte was arrested

in Manila upon his return from Hong Kong pursuant to an ICC request via

Interpol. On the same day, he was transferred to The Hague, where the ICC took

him into custody on March 12, 2025

(https://www.icc-cpi.int/news/situation-philippines-rodrigo-roa-duterte-icc-custody).

 

Legal Basis and Rules for

Issuing ICC Arrest Warrants

The primary legal

foundation is the Rome Statute

(https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf), which provides

for the detention, arrest, and presentation before the Court of individuals

suspected of crimes within the ICC’s jurisdiction. The issuance of an arrest

warrant is conducted by the Pre-Trial Chamber, as stipulated in Article 58 of

the Rome Statute

(https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf#page=36).

Another form of summons is a summons to appear. The Pre-Trial Chamber issues an

arrest warrant upon the Prosecutor’s request at any time after the initiation

of an investigation. The only arrest warrant publicly disclosed by the ICC

pertains to the Sudan case, specifically the arrest of **Ahmad Mohamed Harun**

(born 1964), issued on April 27, 2007

(https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2007_02903.PDF).

Ahmad Mohamed Harun, former Sudanese Minister of State for Security, is charged

with 20 counts of crimes against humanity and 22 counts of war crimes,

including persecution of civilians, mass murder, deportation and forced

displacement, rape and sexual violence, and recruitment and organization of

Janjaweed militias. The Sudanese authorities have refused to cooperate with the

ICC, and as of March 16, 2025, Ahmad Harun remains at liberty in Sudan.

A critical international

political and legal aspect of an arrest warrant is that the Prosecutor, in

their application for an arrest warrant, must convince the ICC Pre-Trial

Chamber of the existence of information and evidence demonstrating:

- Reasonable grounds to

believe that the individual has committed a crime within the Court’s

jurisdiction (Article 58(1)(a) of the Rome Statute);

- The arrest of the

individual appears necessary under any of three conditions:

  - To ensure their appearance at trial;

  - To ensure that the individual does not

obstruct or endanger the investigation or court proceedings;

  - Where applicable, to prevent the individual

from continuing to commit the crime or a related crime within the Court’s

jurisdiction arising from the same circumstances (Article 58(1)(b) of the Rome

Statute).

The Prosecutor’s

application to the ICC for an arrest must include:

- The individual’s name

and any other relevant identifying information;

- Specific reference to

the crimes within the Court’s jurisdiction that the individual is alleged to

have committed;

- A concise statement of

the facts alleged to constitute those crimes;

- A statement of the

evidence and any other information providing reasonable grounds to believe the

individual committed those crimes;

- The reason the

Prosecutor deems the arrest necessary (Article 58(2) of the Rome Statute).

 

An arrest warrant must

specify:

- The individual’s name

and any other relevant identifying information;

- Specific reference to

the crimes within the Court’s jurisdiction for which the arrest is sought;

- A concise statement of

the facts alleged to constitute those crimes (Article 58(3) of the Rome

Statute).

An arrest warrant remains

valid until otherwise ordered by the Court (Article 58(4) of the Rome Statute).

Based on an arrest warrant, the Court may request provisional arrest or the

arrest and surrender of the individual in accordance with Part 9 of the Rome

Statute (International Cooperation and Judicial Assistance)

(https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf#page=49). The

Prosecutor may also request the Pre-Trial Chamber to amend an arrest warrant by

modifying or adding to the crimes specified therein (Article 58(6) of the Rome

Statute).

As an alternative to

requesting an arrest warrant, the Prosecutor may submit an application to the

Pre-Trial Chamber for the issuance of a summons to appear. If the Pre-Trial

Chamber is satisfied that there are reasonable grounds to believe the individual

committed the alleged crime and that a summons would suffice to ensure their

appearance, it issues a summons with or without conditions restricting liberty

(other than detention), as provided under national law (Article 58(7) of the

Rome Statute).

A summons to appear must

include:

- The individual’s name

and any other relevant identifying information;

- The specific date of

appearance;

- Specific reference to

the crimes within the Court’s jurisdiction that the individual is alleged to

have committed;

- A concise statement of

the facts alleged to constitute those crimes (Article 58(7) of the Rome

Statute).

The summons is served

directly on the individual (Rule 121(3) of the ICC Rules of Procedure and

Evidence)

(https://www.icc-cpi.int/resource-library/Documents/RulesProcedureEvidenceEng.pdf#page=61).

An important aspect is

that under Rule 117 of the ICC Rules of Procedure and Evidence (Detention in

the Custodial State)

(https://www.icc-cpi.int/resource-library/Documents/RulesProcedureEvidenceEng.pdf#page=107),

in addition to requirements for informing the individual of their arrest,

measures taken by the Court in the event of arrest, actions following arrest,

and detention in a State Party, specific provisions address the conditions for

challenging the arrest. A challenge regarding whether an arrest warrant was

properly issued under subparagraphs (a) and (b) of Article 58(1) of the Rome

Statute must be submitted in writing to the Pre-Trial Chamber. The challenge

must set out the grounds for contesting the warrant. After receiving the

Prosecutor’s opinion, the Pre-Trial Chamber promptly decides on the challenge.

This right is autonomous and not restricted by other conditions of Articles 58

or 59 of the Rome Statute. This autonomy also aligns with Article 82 of the

Rome Statute (https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf#page=58).

 

The execution of an

arrest warrant is facilitated by the arrest procedure in the custodial state,

as provided under Article 59 of the Rome Statute

(https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf#page=37).

Pursuant to this provision, a State Party that receives a request for

provisional arrest or for arrest and surrender to the Court must promptly take

measures to arrest the individual in accordance with its national law and the

provisions of Part 9 of the Rome Statute.

The detained “arrested

person” is promptly brought before a competent judicial authority in the

custodial state, which, in accordance with that state’s law, determines

whether:

- The warrant applies to

that individual;

- The individual was

arrested in accordance with due process;

- The individual’s rights

were respected (Article 59(2) of the Rome Statute).

The arrested person has

the right to apply to a competent authority in the custodial state for interim

release pending surrender to the Court (Article 59(3) of the Rome Statute).

Thus, even at the detention stage in a State Party, the “arrested person” may

challenge their detention.

When deciding on any such

application, the competent authority in the custodial state considers whether,

given the gravity of the alleged crimes, there are urgent and exceptional

circumstances justifying interim release and whether sufficient safeguards exist

to ensure the custodial state can fulfill its duty to surrender the individual

to the ICC (Article 59(4) of the Rome Statute). However, the competent

authority in the custodial state may not examine whether the arrest warrant was

properly issued under subparagraphs (a) and (b) of Article 58(1) of the Rome

Statute (Article 59(4) of the Rome Statute).

The ICC Pre-Trial Chamber

is informed of any application for interim release and provides recommendations

to the competent authority in the custodial state. The competent authority

fully considers these recommendations, including any measures to prevent the

individual’s escape, before making its decision (Article 59(5) of the Rome

Statute). This rule raises interesting questions regarding interference with

the independence of national courts from external influence and remains a

subject of debate.

If the individual is

granted interim release, the Pre-Trial Chamber may request periodic reports on

the status of such release (Article 59(6) of the Rome Statute). Following the

custodial state’s decision to surrender the individual, they are delivered to

the ICC as soon as possible (Article 59(7) of the Rome Statute).

Rule 118 of the Rules of

Procedure and Evidence governs pre-trial detention at the ICC’s location

(https://www.icc-cpi.int/resource-library/Documents/RulesProcedureEvidenceEng.pdf#page=108).

If an individual surrendered to the ICC submits an initial application for

interim release prior to trial—either at their first appearance under Rule 121

or later—the Pre-Trial Chamber promptly decides on the application after

obtaining the Prosecutor’s opinion.

Appeals of other

Pre-Trial Chamber decisions are provided for under Article 82 of the Rome

Statute

(https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf#page=58). Each

party, in accordance with the Rules of Procedure and Evidence, may appeal any

of the following decisions:

- A decision concerning

jurisdiction or admissibility;

- A decision granting or

denying release of an individual under investigation or prosecution;

- A decision by the

Pre-Trial Chamber to act on its own initiative under Article 56(3);

- A decision on an issue

that would significantly affect the fair and expeditious conduct of proceedings

or the outcome of the trial.

 

Recent Developments in

ICC Activities

Over the past few years,

the ICC’s activities have undergone the following changes:

- Increase in Arrest

Warrants: The ICC has issued 60 arrest warrants, including one against Rodrigo

Duterte

(https://en.wikipedia.org/wiki/List_of_people_indicted_in_the_International_Criminal_Court).

- Execution Breakdown:

  - Executed: 22 (36.67%), including Duterte’s

arrest in March 2025.

  - Deceased Accused: 7 (11.67%).

  - Accused at Liberty: 31 (51.67%).

- Latest Warrant: The

arrest warrant for former Philippine President Rodrigo Duterte was issued on

March 7, 2025, for crimes against humanity, specifically mass extrajudicial

killings during the “war on drugs.” He was arrested in Manila on March 11, 2025,

upon returning from Hong Kong and taken into ICC custody in The Hague on March

12, 2025 (https://www.reuters.com).

- Ukraine’s Accession: As

of January 1, 2025, Ukraine became the 125th State Party to the Rome Statute,

entailing financial contributions to the Court’s budget and obligations to

cooperate with the ICC (https://www.amnesty.org/en/latest/news/2024/08/ukraine-ratifying-the-rome-statute-a-welcome-step-but-limitations-must-be-addressed/).

- Budget Increase: In

2025, the ICC’s budget rose to €195,481,000, an increase of €8,397,000 compared

to 2024

(https://asp.icc-cpi.int/sites/default/files/asp_docs/ICC-ASP-23-10-ENG.pdf).

- Non-Compliance Issues:

For the first time, the ICC and international law have faced non-execution of

ICC decisions:

  - In September 2024, Mongolia refused to

arrest Putin during his visit, exemplifying the disregard of warrants due to

geopolitical interests

(https://www.eurointegration.com.ua/eng/news/2024/09/5/7193579/).

  - On January 18, 2025, the ICC issued an

arrest warrant for Osama Elmasry Njeem, a Libyan commander accused of war

crimes and crimes against humanity (murder, torture, rape) at Mitiga prison in

Tripoli since February 2015. He was arrested in Turin, Italy, on January 19,

while seeking refugee status. However, on January 21, Rome’s appellate court

released him due to a “procedural error”—Italy’s Ministry of Justice was not

notified in advance, as required by national law. That same day, he was

deported to Libya on an Italian special services flight without ICC

consultation, violating Article 89 of the Rome Statute on cooperation with the

Court. On February 5, 2025, the ICC condemned Italy’s actions as a “serious

breach of international obligations” and called on the Assembly of States

Parties to investigate

(https://www.icc-cpi.int/news/statement-italy-failure-comply-arrest-warrant-osama-elmasry-njeem).

As of March 16, 2025, Njeem remains at liberty in Libya.

 

Why Are ICC Arrest

Warrants Not Executed?

Why, then, do most ICC

arrest warrants remain unexecuted? This is due to a combination of

international and domestic factors:

International Factors

- Limited ICC

Jurisdiction: The United States, Russia, China, and India are not parties to

the Rome Statute and do not cooperate with the Court

(https://asp.icc-cpi.int/states-parties).

- International Immunity:

Leaders evade accountability through diplomatic status (Article 27 of the Rome

Statute rejects immunity, but non-participation by states complicates

enforcement).

- Geopolitical Interests:

States hesitate to execute warrants due to diplomatic or economic risks, as

seen with Mongolia in 2024.

Domestic Factors

- Lack of Control: In

conflict zones, authorities lack the capacity to arrest suspects.

- Legal Obstacles*:

National laws may conflict with the Rome Statute.

- Public Support: Accused

individuals often enjoy domestic support, complicating arrests.

Expert Commentary

- UN Human Rights Experts

Group: “ICC warrants are a step toward justice but require state enforcement.”

This stance was expressed by 44 independent UN Human Rights Council experts,

including Special Rapporteurs such as Francesca Albanese, Special Rapporteur on

the occupied Palestinian territories

(https://www.linkedin.com/in/francesca-albanese-2b938a5/), published on the

OHCHR website

(https://www.ohchr.org/en/press-releases/2024/11/icc-arrest-warrants-can-help-save-lives-must-be-respected-and-complied-un).

- Juliette McIntyre:

“Duterte’s arrest may shift approaches to leaders’ impunity.” A Senior Lecturer

in Law at the University of South Australia and international law expert

(https://www.linkedin.com/in/juliette-mcintyre-847b3a1a/), her analysis was

published in the Law Society Journal

(https://lsj.com.au/articles/the-icc-arrest-warrants-an-international-law-experts-perspective/).

 

Conclusions

The foregoing leads to

several conclusions, including: the issuance of arrest warrants significantly

impacts international relations, often involving high-ranking officials or key

figures in conflicts. A key challenge is the limited cooperation of states not

party to the Rome Statute and the politicization of warrant enforcement. For

instance, in cases involving ongoing armed conflicts, states often hesitate to

execute warrants due to risks of diplomatic complications. During the

enforcement of arrest warrants, challenges to an individual’s detention and the

grounds for issuing the warrant are possible. Nonetheless, ICC arrest warrants

remain a vital tool in ensuring international justice, though their

effectiveness hinges on states’ political will and international cooperation.

Further refinement of cooperation procedures and strengthening the role of

international law are necessary steps to enhance the ICC’s efficacy in

combating impunity.

 

The world requires

effective reform of international law and institutions, which have proven

incapable of countering violence and preserving peace during crises. Mechanisms

to ensure greater state accountability are essential. Expanding Rome Statute

membership and fostering dialogue with non-cooperating states would bolster the

ICC’s efforts to hold perpetrators accountable. Imposing stringent sanctions on

states that deliberately ignore ICC warrants would ensure consistent

enforcement of its decisions. Ultimately, the execution of ICC arrest warrants

depends on a combination of international support, domestic stability, and

states’ collective willingness to uphold international legal norms.

 

Dr. Denys Keshkentii, Ukrainian Attorney, Master of

International Law, CEO of Key Legal Factors (Netherlands)  [email protected]

March 16, 2025



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