International Criminal Court (ICC) update – September 2024–March 2025
Ed Smyth
Kingsley Napley LLP, London
Over the past six months, the International Criminal Court (ICC) has taken a number of significant steps in pursuance of its mandate to prosecute individuals for crimes of international concern, including war crimes, crimes against humanity and genocide. These developments underscore the ICC’s commitment to addressing grave violations of international law, although the institution continues to face challenges and criticisms.
Arrest warrants arising from the Israel-Hamas conflict
On 21 November 2024, the ICC issued arrest warrants for the Israeli Prime Minister, Benjamin Netanyahu, and the former Defence Minister, Yoav Gallant. These warrants allege responsibility for the war crime of using starvation as a method of warfare and crimes against humanity, including murder, persecution and other inhumane acts during the Israel Defence Forces’ (IDF) operations in Gaza following the Hamas attacks on Israel on 7 October 2023. This landmark development is the first instance of the ICC issuing an arrest warrant against the leader of a Western-backed democratic country for war crimes.
The warrants obligate the 125 ICC member states to arrest Netanyahu and Gallant if they enter their territories. The decision has been met with varied reactions. The Israeli government condemned the warrants, labelling them as ‘antisemitic’ and questioning the ICC’s legitimacy. Conversely, the Palestinian Authority praised the decision as a restoration of hope in international law and justice.
The legal community has also been divided. Some international law scholars assert that state parties to the Rome Statute are legally obliged to enforce the arrest warrants. In contrast, for example, the high-profile US defence lawyer, Alan Dershowitz, has argued that the warrants undermine the rule of law and has offered to defend the Israeli leaders should they end up in The Hague.
At the same time as issuing the Netanyahu and Gallant warrants, the ICC issued an arrest warrant for the military commander of Hamas, Mohammed Deif, for crimes against humanity and war crimes. However, Deif’s death in an Israeli airstrike was confirmed by Hamas on 30 January 2025 (having been reported as early as July 2024) and, consequently, the ICC terminated proceedings against him on 26 February 2025.
Finally, a UN-backed group of human rights experts produced a report intended for use by the ICC for potential prosecution of war crimes by Israel. It alleges ‘disproportionate violence against women and children’ by the IDF, and that military operations involving the destruction of reproductive health care facilities, could be considered ‘genocidal acts’.
Arrest and transfer of former Philippine President, Rodrigo Duterte
In another significant development, former Philippine President, Rodrigo Duterte, was arrested and transferred to The Hague to face charges of crimes against humanity related to his administration’s ‘war on drugs’. Duterte is accused of forming death squads responsible for numerous killings during his anti-drug campaign, which activists claim resulted in up to 30,000 deaths. His arrest marks the first time a former leader of an Asian country has faced charges filed by the ICC.
The arrest operation was not without incident. Duterte resisted arrest, leading to a 12-hour standoff at Manila’s Villamor Air Base before he was transferred to The Hague. He refused fingerprinting and threatened lawsuits against the arresting officers, claiming his constitutional rights were being violated. Despite these challenges, Duterte was transported to the ICC’s detention centre, where he awaits his initial court appearance.
Duterte’s arrest has been welcomed by activists and victims’ families in the Philippines, who see it as a step toward justice. However, his supporters, including his daughter, Vice-President Sara Duterte, have criticised the ICC’s actions, contesting its jurisdiction based on the Philippines’ withdrawal from the Rome Statute in 2019.
The IBA, through Executive Director Mark Ellis, welcomed the development:
‘The arrest of Rodrigo Duterte underscores the importance of the International Criminal Court for victims who will not be able to obtain justice from domestic legal systems. The role of the Court in ensuring accountability for atrocity crimes is more important than ever, and Mr Duterte’s arrest is yet another sign that international justice is critical in the eyes of victims, knowing that even fourteen years after the alleged crimes were committed, justice prevails. The IBA also applauds those states that cooperate for the implementation of ICC arrest warrants and other judicial decisions.’
Challenges and criticisms facing the ICC
One of the most significant challenges the ICC faces is the enforcement of arrest warrants. For instance, some member states have expressed reluctance to enforce the Netanyahu and Gallant warrants; France has argued that the warrants are invalid because Israel is not a member of the ICC; similarly, Poland has guaranteed safe passage for Netanyahu to attend an event in Poland marking the 80th anniversary of the liberation of Auschwitz. These practical obstacles to effectiveness, alongside issues of jurisdiction and criticisms of political bias seem likely to remain unresolved for some time to come.