Abstract
In May 2024, the Prosecutor of the International Criminal Court (“ICC” or “Court”) requested arrest warrants against five individuals—three Palestinians and two Israelis. These included arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant for international crimes dating back to October 7, 2023, the date of an armed attack by Palestinian armed groups. Among other things, this request was exceptional in the history of ICC’s Office of the Prosecutor (OTP). The ICC Prosecutor is responsible for investigating and prosecuting individuals for the alleged commission of international crimes within the Court’s jurisdiction—namely genocide, crimes again humanity, war crimes, and the crime of aggression. Despite this critically important role, there is still relatively little—albeit growing—attention given to how power, race, and other factors impact the OTP’s investigations and prosecutions. Since the Court began operations in 2002, there have been three different Prosecutors. Over the years, the OTP’s activities—and lack of activity in certain contexts—have given rise to a great deal of criticism. In particular, observers have asserted that the Court’s Prosecutors have largely deferred to powerful, generally Western, states (or the Global North). Prosecutors have effectively done this through prosecutorial discretion, playing a gatekeeping role and declining to progress on certain situations by citing budgetary factors or legal assessments such as complementarity, gravity, and the interests of justice.
This Article assesses criticism of the Prosecutor’s role by examining its approach to the situation in Palestine. It argues that, at least until very recently, the OTP’s actions and inactions have been consistent with much of the criticism against it—particularly that it has suffered from institutional failure and bias, based on the above-mentioned factors. The Prosecutor’s recent request for arrest warrants is an important exception to that record. However, given the long history of the OTP’s engagement with the Palestine situation and, generally, the Third World (or the Global South), this Article expresses a cautious note of hope, although it is too early to conclude that these recent actions represent an enduring change in the OTP’s approach.
