On May 20, 2024, Karim Khan, the prosecutor of the International Criminal Court (ICC), filed applications for warrants of arrest before Pre-Trial Chamber I in the Situation in the State of Palestine. At first, many thought that the arrest warrants had been issued, before realizing that it is now up to the judges to accede, in whole or in part, to Karim Khan's request.

The task is not a simple one, and the responsibility resting on the shoulders of the judges is a heavy one. They now have little room for maneuver in rejecting the request made public by the prosecutor. In principle, it is rare at this stage to communicate on the mere filing of motions. But this is clearly an unprecedented situation, one on which the Court is particularly eager to act, and where the future of international criminal justice is at stake more than ever.

Assuming that the arrest warrants are issued, we will have to rely on the cooperation of the ICC's 124 States Parties to arrest the suspects if they happen to be in one of their territories. Everything will depend on the goodwill of the States.

Opening 'the door to everything'

In the most likely event that the suspects are not arrested (as can be seen from the difficulty the Court is still having in apprehending Omar Al-Bashir), how will they be tried? A number of voices are calling for trials in absentia. A group of practitioners, led by Catherine Mabille, Bruno Cotte and François Roux, proposes to amend the Rome Statute [the treaty that created the ICC] to include the possibility of judging in absentia. According to Julian Fernandez and Serge Sur, the inability of the ICC to judge in absentia condemns it "to the role of an engaged spectator” [in an op-ed in French published in Le Monde]. In the end, many agreed on the need to do something.

In practice, however, the mere mention of amending the Rome Statute has always frightened the majority of those involved in international criminal justice. Amending the Statute would open "the door to everything," and above all the exit door: Many States would prefer to withdraw from the legal instrument. These arguments were justified when the Court fell into disuse and disappointment.

Renewed interest in international criminal justice and the ICC has never been greater, and dashed hopes have been rekindled. Assuming that the Rome Statute is amended, how would then be judged Putin or Netanyahu, two leaders who are both firmly opposed to the Court and do not recognize its authority? Judging them necessarily implies a fair and adversarial trial. How, then, can such a trial be envisaged, and how can its legitimacy be ensured, without the presence and support of the accused?

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