Due to large number of briefs submitted, ICC may have to delay ruling on arrest warrants for Netanyahu, Gallant

A large number of briefs – for and against – were received for review from 70 states, organizations

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Approximately 70 countries, organizations and individuals have submitted amicus briefs to the International Criminal Court concerning ICC Prosecutor Karim Khan’s call for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as three Hamas terrorist leaders. The significant inflow of briefs likely means the ICC will need to postpone its decision whether to accept or reject Khan’s proposal.

In May, Khan announced his intention to seek arrest warrants against Netanyahu and Gallant, as well as the Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif. While Khan recognized Israel's right to self-defense, the ICC chief prosecutor claimed, "The means Israel chose to achieve [that right] in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.”

The large number of briefs disputing the ICC's jurisdiction and its right to request arrest warrants against the Israeli leaders have so far been submitted by pro-Israel countries like the United States, Germany and Argentina. In addition, briefs have been submitted by organizations like the Simon Wiesenthal Center, International Association of Jewish Lawyers and Jurists, Israel Bar Association and UK Lawyers for Israel. Individuals, such as U.S. Senator Lindsey Graham have also submitted separate briefs to the court.

Nations that support Khan's call to arrest the Israeli and Hamas leaders, such as South Africa, Spain, Ireland and Bangladesh, have also reportedly submitted briefs.

According to regulations, each submission must be no longer than maximum 10 pages in length and must be submitted by Aug. 6. Khan will reportedly have the opportunity to respond to each brief.

Some pundits have said the ICC’s ruling on the Gaza War could potentially be delayed additional months due to the large volume of new briefs to be examined. In June, the ICC delayed its decision of potential arrest warrants for Netanyahu and Gallant.

Prof. Yuval Shany from Hebrew University’s Faculty of Law argued that the court’s decision to accept the large number of briefs was an “unusual step” that likely indicates the court has doubts about its jurisdiction and admissibility concerning the Gaza War case. Shany himself was permitted to submit an amicus brief, together with Prof. Amichai Cohen from the Israel Democracy Institute.

Israeli and international critics have blasted Khan’s decision as political and accused him of hypocrisy by indirectly equating the leaders of a Democratic state under attack with the leaders of a terrorist organization that launched the war when it invaded Israel and massacred at least 1,200 people on Oct. 7.

Israel and its international supporters have argued that the ICC lacks jurisdiction because Israel is not a member state and the signed Oslo Accords state that the Palestinian Authority has no criminal jurisdiction over Israeli nationals.

Shany noted that Germany has expressed concerns about the speed of the prosecutor’s push for arrest warrants against the Israeli leaders.

“There are indications that at least one country, Germany, has raised concerns that the speed in which the prosecutor has pushed the case forward has not allowed the Israeli legal system to react in real time [in response] to the allegations,” Shany assessed, adding that the legal principle of complementarity in the Israeli case “has been applied in ways that do not give sufficient time for the practicalities of investigating cases during a time of war.”

Stefan Talmon, a professor of International Law at the University of Bonn in Germany, believes the ICC may have doubts about its jurisdiction in the particular case.

“Pre-Trial Chamber I seems intent to comprehensively (re-)consider the question of the ICC’s jurisdiction and perhaps exercise its discretion as to reviewing the admissibility of the case,” Talmon wrote on 𝕏.