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Setting aside the question of whether Israel is or is not guilty of war crimes, why would the ICC need to have Netanyahu in their custody in order to investigate the allegations against Israel? As per the standards of any reasonable criminal court, a defendant cannot be compelled to testify against themselves, so it's not like Netanyahu being in jail in The Hague would help accelerate the investigation. As a person accused of a crime, he would be completely within his rights to refuse to answer any questions and not assist the investigation in any shape or form.

Why not finish the investigation, reach a final verdict, and then issue the arrest warrant? Obviously, Netanyahu should be able to defend himself if charges are brought against him but why does he have to do it from behind bars? The ICC could invite him to testify remotely or in person as a free man, should he feel the necessity to do so.

P.S. This question is strictly about the necessity for an arrest warrant. Let's avoid discussing who's (not) guilty in the war in Gaza, Zionism, Palestine, Hamas or any other tangential topics.

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    If the question does not concern whether Netanyahu/Israel is guilty in war crimes or not, but strictly on the procedure, then why mention them? Why not ask about "an arrest warrant against a leader"? Commented May 9 at 6:38
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    @TsahiAsher good point, a bit too late to edit now though :/ Commented May 9 at 14:13
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    @TsahiAsher potentially, Israel might be getting special treatment, so abstract question wouldn't have exactly the same meaning.
    – Morisco
    Commented May 9 at 18:39
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    Many courts require the defendant to be present during court proceedings. E.g. Trump has to sit in the New York court during his hush money trial, even though he'd much prefer to be out campaigning.
    – Barmar
    Commented May 9 at 19:03
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    @Barmar yeah, I don't quite get the point of that either. If you think he'll run away after the verdict, put him in jail. If not, let him testify over Zoom or something. Commented May 9 at 19:40

4 Answers 4

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...why would the ICC need to have Netanyahu in their custody in order to investigate the allegations against Israel?

They don't. The suggestion (as far as I can tell) is not that the ICC should arrest Netanyahu for the purpose of investigating the allegations. The suggestion is that the ICC should arrest Netanyahu in order to try him on those allegations.

Obviously, you do need to finish the investigation before you start arresting people, but my reading of (e.g.) Tlaib's statement is that she thinks the investigation has gone on for long enough, and should now conclude with Netanyahu's arrest.

Why not finish the investigation, reach a final verdict, and then issue the arrest warrant?

Reaching a verdict before arresting someone is a trial in absentia. As your question acknowledges, it is normally considered improper to hold such a trial, without at least giving the defendant a reasonable opportunity to appear.

Obviously Netanyahu should be able to defend himself if charges are brought against him but why does he have to do it from behind bars?

If you've already reached a verdict, then that would require a second trial. At which point the first verdict is just a liability - it would be used to argue that the ICC has improperly prejudged the matter, and cannot be impartial.

If you are instead suggesting that Netanyahu should be tried, but not arrested unless he is convicted, that would pose the obvious problem of him potentially refusing to show up for the end of the trial (or indeed for any part of the trial). In "regular" criminal courts, arrest, or some substitute for arrest, is the standard mechanism to address that problem.

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    that would pose the obvious problem of him potentially refusing to show up for the end of the trial => well, he's also refusing to show up for the beginning of the trial. Why not just run a trial in absentia then, with the option to testify remotely or in person as a free man should he wish to do so? If the ICC manages to prove beyond reasonable doubt that Netanyahu is at fault, that would make their case for arresting him a lot stronger. Commented May 9 at 2:14
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    Tlaib's statement is that she thinks What does Tlaib have to do with ICC procedures? Why not pick someone who actually has some official authority, and a modicum of impartiality in the matter, to cite in an answer? Commented May 9 at 2:39
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    @ItalianPhilosophers4Monica - Tlaib not only is not a functionary of the court, but not an EU politician—since the court is in the EU, such politicians might collectively have some influence. In fact, any American politician has less influence than any politician from a country that is still party to the Rome Statute, since the USA withdrew its signature. To the extent that her recommendations are more likely to be fulfilled than those of, say, Tom Cotton (or Joe Sixpack) it's only because the court's perspective is already closer to the former than to the latter.
    – Obie 2.0
    Commented May 9 at 4:07
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    @JonathanReez: Please do not snip out half of my sentence, and then object that the portion you snipped out is missing. I explicitly qualified that sentence with "without at least giving the defendant a reasonable opportunity to appear," and you complained about it anyway. As for Netanyahu appearing as a witness despite refusing to submit to the jurisdiction of the court, that is so obviously a non-starter that it makes me doubt the sincerity of your question.
    – Kevin
    Commented May 9 at 7:18
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    @Obie2.0: I picked Tlaib because she's a prominent politician who is calling for the ICC to issue an arrest warrant. This is Politics.SE, not Law.SE. If you want to talk about the procedures of the court, or what the court is actually likely to do, that's a totally different question from what was asked here, which is about the political position that "the ICC should issue an arrest warrant."
    – Kevin
    Commented May 9 at 7:18
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allegations against Israel

The ICC doesn't judge countries. (You're perhaps making some confusion here with the ICJ.)

Many courts (incl. in the US) don't do criminal trials in absentia. Perhaps a better Q would be why the ICC, which somewhat of a European project, does that, when some EU countries do do trials in in absentia. Per the link though, Colozza v Italy somewhat answers that.

In a 1985 judgement in the case Colozza v Italy, the European Court of Human Rights stressed that a person charged with a criminal offence is entitled to take part in the hearings. This entitlement is based on the right to a fair trial and the right to a defence, both of which are required by the convention (articles 6(1) and 6(3)). Furthermore, the court stressed that a person convicted in absentia shall be entitled to a fresh trial once he becomes aware of the proceedings:

When domestic law permits a trial to be held notwithstanding the absence of a person "charged with a criminal offence" who is in Mr. Colozza’s position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge.

— European Court of Human Rights, Colozza vs. Italy

Furthermore, when it comes to crimes against humanity etc., the ICTY found that even publicly issuing arrest warrants was somewhat counterproductive, so they started to issue them sealed.

Initially, the ICTY practice was to publicly issue an arrest warrant upon confirmation of an indictment. However, the ICTY found that publishing indictments and generating media attention proved to be ineffective, as did the practice of announcing indictments in open proceedings designed to highlight failures to arrest suspects. When accused learned of the existence of warrants for their arrest, it was not uncommon for them to go into hiding, sometimes in territories where they received protection. Eventually, the ICTY's Prosecutor’s Office adopted the practice of requesting that indictments be "sealed" (not made public) after confirmation. When the opportunity to detain and arrest an accused exists, sealed indictments are undoubtedly more effective than are public documents.

Also of some interest, perhaps:

Rule 61 provided for a public hearing before a Trial Chamber in circumstances where the Registrar and Prosecutor could demonstrate that reasonable steps had been taken to secure the accused's arrest and that a reasonable period of time had elapsed without the execution of the warrant of arrest by the State to which it had been transmitted. This procedure was invoked in 1996 in the case against Radovan Karadžić and Ratko Mladić. In a public hearing before three Judges of the Trial Chamber, the Prosecutor presented the indictment and the supporting materials in open court, outlined the failure by the State to arrest the accused, and also called certain witnesses to testify publicly about the events. The accused, who were at large, were not allowed to be represented, although an amicus curiae was invited to appear at the hearing. The procedure did not constitute a trial in absentia and was not designed to result in a conviction. Instead, the Chamber issued an international arrest warrant addressed to all UN Member States. The public Rule 61 procedure therefore served a limited purpose, but was discontinued when the Prosecutor adopted the practice of seeking to have indictments sealed and kept out of the public domain.

It's also mentioned that

Trials in absentia are not provided for under ICTY regime although they are acknowledged in International Law and are compatible with Human Rights Law under strict conditions.

With some footnotes that do mention the ICC's rough equivalent of ICTY's Rule 61, i.e. in absentia proceedings limited to the pre-trial phase.

Article 61(2) of the Rome Statute of the ICC allows for proceedings in absentia at the pre-trial stage, and Article 22 of the Statute of Lebanon Special Tribunal allows trial in absentia for any proceeding, under the conditions derived from relevant Human Rights Courts.

Trials in absentia potentially conflict with accused rights to defend himself in person or through a counsel of his own choosing, and his right to examine witnesses against him, as provided for under Article 14 (3) (d) of the International Covenant on Civil and Political Rights, Article 8 (2) (d) (f) of the American Convention on Human Rights, and Article 6 (3) (c) and (d) of the European Convention on Human Rights. However, according to the case-law of the European Court of Human Rights, trials in absentia are admissible when held in respect for the rights of the accused, when non-appearance is attributable to a waiver to the right to be present at trial, provided that sufficient guarantees are afforded to the accused, including an effective notice of the pending proceedings (awareness) and the possibility of retrial upon appearance after conviction (e.g., in Krombach v. France, Judgment, 13 February 2001; Sejdovic v. Italy, Judgment, 1 March 2000).

TLDR: The (perhaps) conflicting cooks that made the ICC statute made in absentia proceedings limited to the pre-trial phase, like the ICTY's. Reasons for that are not entirely explicit, but can be fairly easy to guess: somewhat conflicting views on the legality of trials in absentia. The ICC is bound by its statute.



Somewhat interestingly though, the ICC's updated rules do allow a defendant to be absent in parts of the proceedings “to fulfil extraordinary public duties at the highest national level”. But this excludes some phases, incl. the delivery of judgement:

A new approach within the sphere of trials in absentia before [international criminal tribunals] was introduced by the ICC in the William Ruto case. William Ruto, one of the defendants in the Kenyan situation, argued that due to his position as vice-president of Kenya, his presence throughout the full trial would impair his public tasks. Accordingly, he petitioned to the ICC to be released from the requirement to appear before the ICC (at every occasion). The ICC partly granted this request; yet, it held that such release does not prevent the trial from continuing. Furthermore, the ICC contemplated that full absence on part of Ruto was not “in the interests of justice.”

The ICC’s original RPEs [Rules of Procedure and Evidence] did not provide for the accused’s absence during the trial. Yet, in November 2013, during the 12th session of the Assembly of State Parties, Kenya (backed by Botswana, Jordan, the United Kingdom and Liechtenstein) proposed to amend the RPEs. These States Parties requested to rescind the requirement of the accused being present during trial, to allow transcripts and written testimony, rather than viva voce testimony, as well as to permit the defendants to be “present” through a video link and their counsel. The Assembly of State Parties adopted Rule 134 quater into the ICC RPE, which allowed for an accused’s absence during trial, if he or she has a mandate “to fulfil extraordinary public duties at the highest national level.”

The Trial Chamber will grant the accused’s (written) request if it is in the “interests of justice” presupposed that the “rights of the accused are fully ensured.” The introduction of Rule 134 quater encountered criticism, as it would contravene with Article 63(1) ICCSt., which requires an accused’s presence during trial. According to critics, the Rome Statute was amended through the – simpler – “backdoor” of the RPE, while concessions are being made to the advantage of inter alia sitting heads of state and high placed government officials. Yet, Kenya’s proposal to amend Article 27 ICCSt., so that incumbent heads of State could be (fully) exempted from prosecution during their time in office, failed.

Shortly after the RPE amendments, the defence team of the Kenyan vice-president Mr. Ruto filed a request to exempt him from attendance at trial. As said, the Trial Chamber determined that total absence was not “in the interests of justice.” The Trial Chamber applied four indicia to balance the competing interests under Rule 134 quater ICC RPE:

(i) the interest of the Court to conduct fair, effective and expeditious proceedings,
(ii) the interest of victims in the proceedings conducted in the presence of the accused,
(iii) the interest of the Prosecutor,
(iv) the evidentiary value of the presence of the accused during the testimony of witnesses, on the one hand; and the interest of the State mandating the accused to fulfil extraordinary duties at the highest national level, on the other hand.

As the Trial Chamber ruled, Ruto ought to be present at the time the victims were to be heard in court, during the closing arguments and the delivery of the judgment. More specific, Ruto’s presence was deemed mandatory during:
(1) the closing statements of all parties and participants;
(2) the delivery of the judgment;

His presence was, if applicable, also required at:
(3) the sentencing hearing;
(4) the sentencing itself;
(5) the victim impact hearings;
(6) the reparation hearings;
(7) the first five days of the hearings after the judicial recess;
(8) any other attendance upon determination of the Chamber (either proprio motu or upon request).

Hence, even though the Rome Statute drafters envisaged the accused being present during trial, RPE amendments have created a legal mechanism for public officials to be excused from attendance during an ICC trial. The Trial Chamber, however, has wide discretion in either refusing, granting or partly granting such excusal, while the balancing the competing interests.

Quoted from "Trials in Absentia", chapter in An Introduction to the Law of International Criminal Tribunals by Geert-Jan Alexander Knoops

It's also worth comparing this with the more detailed US federal procedure, outlined in Wikipedia, which has some similarities. For those [even more] curious, the COE has (loong, 250-page worth) survey on trials in absentia in various member countries: starts on p.18, followed by a summary table on pp. 44-50 (although some countries criminal procedure is complex enough in this regard that they didn't provide a simple summary in that shorter table).

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    You know, I hate to say anything going Bibi's way, but Jonathan's question is a good one. A trial of a sitting head of state is not exactly like that of regular person, esp. in wartime and it might make sense to allow for much of the evidence presentation to take place without the main principal present. To illustrate my point, let's take the hypothesis that it's Zelensky in the dock. Say a UKR unit went rogue after capturing some Russians and killed them. (Z. did not order it, but that's not clear before the trial). Can Ukraine, in wartime, afford to have their leader gone for months? Commented May 9 at 5:08
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    As Jonathan originally commented, the process is itself a form of punishment in this case. Not for the leader, possibly, but for their country. I understand the legal principle of the accused being able to defend themselves, but this issue gives reasonable, practical, grounds for a country to object to a court's interference, esp. as, remember, innocent until proven guilty. Should the accused have their representatives act on their behalf, at least some of the time, would that be so problematic? I choose a more popular leader than Bibi on purpose, but Israel is no less at war. Commented May 9 at 5:20
  • @ItalianPhilosophers4Monica: interestingly, the ICC dealt with that issue for a Kenyan vice-president. And updated their rules. See the long addition to the answer. Commented May 9 at 5:21
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    These things are loooong. For example, Milosevic's trial lasted from Feb 2002 to his death in March 2006. Ah, I see, your update does address that, and also better answers JR's question now. Commented May 9 at 5:22
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    Afaik the legal argument behind in absentia trials is, that by escaping, the suspect himself has given up his right to legal self-defense (or the part what would require his physical involvement in the courtroom). The legal argument against it that is mostly gives up the right for a fair trial, what can be conducted if the escapee is catched. Another problem with it if there is capital punishment, in absentia death penalty makes someone essentially free prey, which is too wild-west for a civilized society.
    – Gray Sheep
    Commented May 9 at 15:21
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Question:

Why would the ICC need to issue an arrest warrant against Netanyahu to investigate Israel's alleged war crimes?

They wouldn't. The ICC opened an ongoing investigation into the situation in Palestine in 2021. The warrant would be issued only if the investigation had found credible evidence supporting the charges in the warrant. The claim currently by Israeli PM Netanyahu and others is the ICC is now prepared to issue this arrest warrant based on their roughly three-year investigation. We have not yet had a corroborating statement from the ICC. If the ICC does issues an arrest warrant, after the indicted are arrested; then the next step would be a trial where the case for and against would be made. The Rome Statute of the International Criminal Court (icc) explicitly prohibits the use of trials in absentia, which seems to make sense given there sometimes are years between an arrest warrant and actually obtaining custody of the indicted.

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  • Sure but there's still supposed to be a trial, right? What difference does it make whether Netanyahu is physically present for said trial or not? Commented May 9 at 19:48
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    @JonathanReez, The Rome Statute of the International Criminal Court (icc) explicitly prohibits the use of trials in absentia. Which makes sense because it sometimes take years to get custody of an accused. Yes once they gain custody there is still a trial.
    – JMS
    Commented May 9 at 20:04
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You can ask the same question about any trial. Why bother with the arraignment process? Just have a trial and worry about arrests later. Anyway, putting aside the technical legalities of doing so in the absence of Netanyahu having showed up to the ICC, an investigation and conviction against him would be meaningless in judicial terms. Israel is not a member state of the International Criminal Court and Israel does not recognize the court's authority. Ditto for the Palestinians.

Say someone in Congo brought a court case in Congo against an American citizen over criminal allegations that allegedly happened in the US to a third party. The American citizen who has never been to Congo and never been in any personal contact with the plaintiff does not attend the trial. The court finds him guilty. Or, less extreme, say a non-Muslim is summoned to a Sharia court in the US over a civil suit. The person does not show up and the court finds him owing money to the plaintiff based on Sharia law but not necessarily US civil law. What meaning would such a ruling have to a non-Congo citizen or non-Muslim?

Getting back to the ICC. Without Netanyahu being at the trial their ruling would not even be the equivalent of the cases given above . At least in those cases there is one litigant who recognizes the courts authority and accepts that they are subject to its jurisdiction. In this case you wouldn’t even have that. It would be a trial where neither party to the conflict recognizes the courts jurisdiction and neither side even being at the trial. It would be be like a prosecutor in Congo reading allegations in the newspaper against an American politician and trying him in Congo. Without that politician being at the trail how much value does the ruling have? If however Netanyahu was there, the ICC can claim technical authority and ability to make a ruling by the dint of the fact that Netanyahu was at the trial.

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  • I guess this circles back to my prior question: politics.stackexchange.com/questions/78754/… Commented May 9 at 17:15
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    "an investigation and conviction against him would be meaningless" - it wouldn't be meaningless at all. He would effectively be unable to travel to any of the 124 countries under the ICC's jurisdiction without risk of arrest or causing a diplomatic crisis. There is also the reputational damage to having an ICC conviction. Both highly significant for a head of state, particularly one in a democratic country. Consider for example, the diplomatic crisis that was triggered over Putin's planned (and then cancelled) trip to South Africa because of his arrest warrant.
    – JBentley
    Commented May 9 at 19:07
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    The type of counties who would bar a Netanyahu visit over an ICC ruling are the type of countries he would never visit anyhow. He isn't welcome there without it. The ICC itself would lose a lot of stature over a trial and conviction of unwilling parties who weren’t at the trial. Plus other countries would be wary of themselves being next. The US is also arguably guilty of doing many of the things behind the accusations against Netanyahu
    – Schmerel
    Commented May 9 at 19:38
  • the type of countries he would never visit anyhow. He isn't welcome there without it. Most/all of the EU would be off-limit and the EU is Israel's biggest trade partner w frequent visits. There are pros and cons on an indictment but pointless bravado isn't one one of the stronger arguments against such an indictment. Note that in the case of Putin, even Russia-leaning South Africa found it more expedient to demur as long as possible on accepting him, until he bowed out on his own. Commented May 10 at 21:27

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