Exclusive: ICC arrest warrant applications ready for Israel's Ben Gvir and Smotrich on apartheid charges

Middle East Eye

6 hours ago

Arrest warrant applications against two prominent Israeli ministers on charges of apartheid are ready and with two deputy prosecutors at the International Criminal Court (ICC), Middle East Eye can reveal.
If the warrants for National Security Minister Itamar Ben Gvir and Finance Minister Bezalel Smotrich are issued, it will be the first time that the crime of apartheid is charged at an international court.
ICC Chief Prosecutor Karim Khan had prepared cases against Ben Gvir and Smotrich before he went on leave in May, according to numerous sources in the court with knowledge of the matter.
"Those applications for the arrest warrants are completely done," an ICC source told MEE.
"The only thing that didn't happen was submitting them to the court," the source said on condition of anonymity.
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MEE can reveal that the deputy prosecutors have the power to submit them to pre-trial judges for examination, but some within the ICC believe the applications will be quietly shelved as the court faces unprecedented external pressure.
The newly elected US administration under Donald Trump sanctioned Khan in February, and he went on leave in May amid a UN investigation into sexual misconduct allegations against him, which he has denied.
'If the Ben Gvir and Smotrich applications just disappear, the opportunity to prosecute one of the most blatant examples of apartheid in the world today will likely be lost forever'
- ICC source
In June, the US further sanctioned four ICC judges.
This included two judges who approved Khan's application for arrest warrants for Israeli Prime Minister Benjamin Netanyahu, former Israeli Defence Minister Yoav Gallant and three Hamas leaders last November.
MEE revealed earlier this month that Khan has been subjected to a string of threats and warnings by prominent figures, including former British Foreign Secretary David Cameron, as well as close colleagues and family friends briefing against him, and fears for the prosecutor's safety prompted by a Mossad team in The Hague.
Khan nevertheless filed applications on 20 May 2024 that culminated in arrest warrants being issued for Netanyahu and Gallant that November.
'There was no more work to do on the applications'
MEE understands that despite continued pressure, the prosecutor's team of lawyers continued investigating alleged Israeli war crimes and crimes against humanity in the occupied West Bank.
But before he could file the applications, Khan went on leave following a failed attempt to suspend him.
"Karim was ready," the ICC source told MEE.
"There was no more work to do on the applications. They're not being drafted. They weren't being revised. They were done.
"All that was left to do was follow court procedures for submitting an application. But Karim didn't have time to do that because everything moved so quickly. And then he stepped aside."
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An ICC statement at the time said Khan's deputies would continue his work across all cases, including the Palestine investigation.
But whether the Ben Gvir and Smotrich warrant applications were filed would not be public knowledge, since the court ordered in April that any further requests cannot be publicised.
Two ICC sources told MEE that the two deputy prosecutors, Nazhat Shameem Khan and Mame Mandiaye Niang, have not filed the applications due to the threat of US sanctions.
British-Israeli ICC defence lawyer Nicholas Kaufman told Israel's Kan public broadcaster in June that the US sanctions on four ICC judges were "meant to be designed to encourage the dropping of the arrest warrants for Prime Minister Netanyahu and former Defence Minister Gallant".
Kaufman added: "Accordingly, most commentators believe that [sanctioning the judges] is a further warning shot over the bows, if I can put it that way, before the sanctioning of the deputy prosecutors who've now taken over from Karim Khan."
When asked by MEE to comment on the status of the Ben Gvir and Smotrich applications, and whether fear of sanctions has delayed their submission, the prosecutor's office said: "The office cannot provide comments on matters related to ongoing investigations and any specific charges that may arise in relation to situations addressed by the office. This approach is essential to protect the integrity of investigations, and to ensure the safety and security of victims, witnesses and all those with whom the office interacts."
Khan declined to comment in response to a request from MEE.
'Justice delayed is justice denied'
Raji Sourani, a lawyer representing Palestine at the ICC and ICJ, criticised the deputy prosecutors for their delay in applying for the warrants.
"For us, they are very late. What are they waiting for? They have everything," he told MEE. "Justice delayed is justice denied."
One ICC source said they feared the case would never see the light of day.
"There were months and months of intense work that went into them. These are really serious documents documenting really serious crimes.
"If the Ben Gvir and Smotrich applications just disappear, the opportunity to prosecute one of the most blatant examples of apartheid in the world today will likely be lost forever."
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On 27 May, The Wall Street Journal reported that the prosecutor had been preparing to seek warrants for Ben Gvir and Smotrich before he went on leave, and that prosecutors had been "weighing" whether the pair committed war crimes related to their role in settlement expansion.
But the report did not mention that apartheid was a central charge against both Israeli leaders, as three sources with knowledge of the matter told MEE, nor that the only step left for the prosecutor's office was to submit the applications.
Under the Rome Statute, the ICC's founding treaty, apartheid is a crime against humanity. It is defined as "inhumane acts… committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime".
Israel has been accused of apartheid by legal scholars and numerous rights groups, including the New York-based Human Rights Watch and Israel's B'Tselem.
In July 2024, the International Court of Justice (ICJ), the UN's principal judicial body, issued a legal opinion that Israel's occupation of Gaza and the West Bank is illegal. It also concluded that Israel's "near-complete separation" of Palestinians in the West Bank, including by the expansion of settlements, breached its obligations under international law to prevent, prohibit and eradicate all racial segregation and apartheid.
On 10 June, the UK, Australia, Canada, New Zealand and Norway sanctioned Smotrich and Ben Gvir over "their repeated incitement of violence against Palestinian communities".
MEE contacted the Israeli government for comment but did not receive a response by the time of publication.
'They will destroy you'
Last month, an MEE investigation revealed that on 1 May, ICC defence lawyer Kaufman told Khan he had spoken to Netanyahu's legal advisor and was "authorised" to make Khan a proposal that would allow him to "climb down the tree".
He told Khan to apply to the court to reclassify the warrants for Netanyahu and Gallant as "confidential", according to a note of the meeting lodged on file at the ICC and seen by MEE.
This, it was suggested, would allow Israel to access the details of the allegations, which it could not do at the time, and challenge them in private, without the outcome being made public.
But Kaufman warned that if it emerged the prosecutor was applying for more arrest warrants related to the West Bank or if the warrants for Netanyahu and Gallant were not withdrawn, then "all options would be off the table".
According to the note, Kaufman told Khan: "They will destroy you and they will destroy the court."
Netanyahu's office did not respond to requests for comment at the time.
In response to questions from MEE, Kaufman denied threatening Khan. He denied having been authorised to make any proposals on behalf of the Israeli government and said he had shared his personal views with Khan on the Palestine situation.
Two weeks after the meeting, Khan stepped down on indefinite leave following the publication by The Wall Street Journal of new sexual assault allegations against him, which he denied.
There is no suggestion of any connection between the Kaufman-Khan meeting and the publication of the allegations.
MEE also revealed in June that on 23 April 2024, as Khan was preparing to apply for warrants for Netanyahu and Gallant, then-British Foreign Secretary David Cameron threatened in a phone call with the prosecutor that the UK would defund and withdraw from the ICC if the court issued the warrants.
The phone call was also reported earlier this month by French newspaper Le Monde.
The British foreign office and Khan both declined to comment in response to the report, while Cameron did not respond to multiple requests by MEE for comment.
Khan faced more pressure from other sources. In a virtual meeting with ICC officials in May 2024, US Republican Senator Lindsey Graham threatened sanctions against them if Khan applied for the warrants.
Now, the ICC finds itself in a precarious position. Many fear the institution itself could be the target of sanctions, a move which would paralyse the court's operations.
In a further threat to the court last month, US State Department legal adviser Reed Rubinstein warned that "all options remain on the table" unless all arrest warrants and the investigation into alleged Israeli war crimes are dropped.
Whether the ICC will issue warrants for Ben Gvir and Smotrich in these circumstances remains to be seen.