May 22, 2024 - World

What to know about the ICC's Netanyahu and Hamas arrest warrant requests

Israel's Prime Minister Benjamin Netanyahu speaking in Jerusalem in March 2024.

Israel's Prime Minister Benjamin Netanyahu speaking in Jerusalem in March 2024. Photo: Leo Correa/POOL/AFP via Getty Images

The International Criminal Court's chief prosecutor requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Hamas leaders this week for alleged war crimes and crimes against humanity during the Israel-Hamas war.

Why it matters: The warrants, if issued, would further isolate Israel and would be a significant international rebuke of Israel's military campaign in Gaza and Hamas' brutal Oct. 7 surprise attack on Israel.

Yes, but: Those subjected to the warrants are unlikely to be arrested or tried in the ICC, which isn't recognized by most major powers and lacks enforcement powers typically available to other judicial institutions.

  • The warrants are also unlikely to affect Hamas' hostilities toward Israel or Israel's military strategy in Gaza, which has been criticized as being incautious of civilian casualties and the physical devastation it has wrought.

Zoom out: Around 1,200 Israelis and foreigners were killed in Hamas' attack. Around 240 more people were taken hostage, many of whom remain unaccounted for.

  • So far, over 35,000 Palestinians have been killed in Gaza throughout Israel's military action in response to Oct. 7, according to data the UN humanitarian office cited and the Ministry of Health in Hamas-run Gaza reported.

The ICC's role:

The Hamburg-based international court was established in 2002 by the Rome Statute to investigate and try individuals charged with war crimes, genocide and crimes against humanity.

  • Palestine and 123 other countries have become members to the court. Notably, the court is not recognized by the U.S., China, India, Russia or Israel, but that doesn't mean their citizens cannot be prosecuted by the court.
  • It's a separate court from the International Court of Justice, which settles disputes between countries and is currently hearing South Africa's claim that Israel has committed genocide in Gaza.

The court is alleging:

The court has accused both Israeli officials and Hamas leaders of committing war crimes and crimes against humanity throughout the war.

  • Specifically, the ICC's chief prosecutor Karim Khan has alleged Netanyahu and Israeli Minister of Defense Yoav Gallant have deliberately starved civilians as a method of warfare, which is a war crime under international law and is prohibited by Israel's Manual on the Laws of War.
  • He cited Israel's total siege over Gaza, which involved the closure of border crossings and restrictions on essential supplies.
  • Additionally, he said Netanyahu and Gallant were allegedly responsible for "willful killing or Murder as a war crime," and for "intentionally directing attacks against a civilian population as a war crime."

Khan also requested arrest warrants for Yahya Sinwar, Hamas' leader in Gaza; Mohammed Deif, leader of Hamas' military wing; and Ismail Haniyeh, the group's political leader.

  • He alleged the three are criminally responsible for the killing of hundreds of Israeli civilians during Hamas' Oct. 7 attack.
  • Further, Khan said they were responsible for the civilians who were kidnapped in the attack and the inhumane conditions and sexual violence they have been subjected to while being held in captivity.

Why the arrest warrants matter:

The warrants have yet to be issued. Khan had only requested that they be approved by a three-judge panel within the court.

  • Before deciding Khan's request, the judges will have to review evidence to determine whether there's "reasonable grounds" to believe war crimes or crimes against humanity have been committed, Reuters notes.
  • This review process has taken weeks to several months in past cases.

If the warrants are issued, Netanyahu, Gallant and Hamas leaders would face severe restrictions on their ability to travel, as they could be arrested in any of the countries that recognize the ICC, which includes most of Europe.

  • The travel restrictions would likely affect Netanyahu and Gallant far more than Hamas leaders. The U.S. has designated Sinwar, Deif and Haniyeh global terrorists, and they are already under travel bans and other sanctions.
  • The outstanding arrest warrants could be particularly damaging for Netanyahu and Gallant, as other government officials may hesitate to offer backing or assistance.

The limits of the ICC's power

Unlike other courts, the ICC does not have a police force or enforcement body and must instead rely on member states to carry out arrests, freeze assets and enforce sentences.

  • The court lacks legitimacy in the eyes of most of the world's major powers.
  • In the case of the proposed warrants against Netanyahu and Gallant, it claims to have jurisdiction since the alleged crimes occurred in Palestine, which officially signed the Rome Statute in 2015.

Why the U.S. and Israel doesn't recognize the ICC:

The U.S., which has sharply rebuked the proposed warrants against Netanyahu and Gallant, isn't a party to the Rome Statute despite participating in the negotiations that led to the creation of the court and at times assisting it with fugitives.

  • The U.S. has given several objections to the ICC's jurisdiction over the years, but its primary concern is the possibility of U.S. soldiers being charged with crimes resulting from legitimate uses of force. The U.S. is also concerned about American officials being charged for foreign policy initiatives.
  • Its complaints against the court were recently challenged. However, the ICC issued arrest warrants for Russian President Vladimir Putin and other Russian officials, which put the U.S. in the position of defending the actions of a court it has deemed illegitimate.
  • And now, its criticism of the court over the proposed warrants sounds remarkably similar to Russia's reaction to the warrant against Putin.

Israel never signed the Rome Statue in 2002, primarily over concerns that prosecutions could result from Israeli settlements in the Palestinian territories.

  • The settlements are considered by many to violate international law, which prohibits an occupying power from transferring part of its civilian population into an occupied territory.

Though Palestine recognizes the ICC, political control in Palestine is divided between the Hamas-led Gaza Strip and the West Bank. That control is further splintered between Israel and the Palestinian Authority.

  • That means that while the Palestinian Authority may recognize the ICC, Hamas doesn't, and it's unlikely Palestinian Authority will attempt to arrest Sinwar, Deif and Haniyeh, even though it's obligated to do so as a state party of the Rome Statute.

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