Exclusive: ICC arrest warrant applications ready for Israel's Ben Gvir and Smotrich on apartheid charges
The applications are in the hands of two deputy
prosecutors in Karim Khan's absence, but ICC sources are concerned they will
not submit them for fear of sanctions
By Sondos Asem
Published date: 15 August 2025
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.
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.
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."
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."
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.
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