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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