ICC Warrants – This is just the beginning!

The prosecutor of the International Criminal Court (ICC) in The Hague, Karim Khan, officially announced today that he has submitted a request for arrest warrants against five individuals in connection with the ongoing conflict between Israel and Hamas that began on October 7. The prosecutor has requested arrest warrants against three senior Hamas officials—Hamas leader in Gaza Yahya Sinwar, head of Hamas’s political bureau Ismail Haniyeh, and head of Hamas’s military wing Mohammed Deif—as well as against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. In both cases, concerning the Hamas leaders and the state leaders, the request for arrest warrants pertains to individual and command responsibility for the offenses.

The offenses for which the arrest warrants have been requested are varied. For the Hamas leaders, the requested arrest warrants are for crimes against humanity and war crimes including extermination, murder, taking hostages, rape and sexual assaults, torture, and cruel and inhumane treatment. These offenses relate to attacks carried out by Hamas during the fighting and during the captivity of the hostages. The offenses attributed to the Prime Minister and Defense Minister are also crimes against humanity and war crimes, including starvation of the civilian population as a method of warfare, wilful killing, targeted attacks against the civilian population, persecution, and other inhumane acts.

The approval of the request is not automatic; a Pre-Trial Chamber, consisting of three judges, will seek to determine if there is justification and sufficient evidence to issue such arrest warrants. This process is also not immediate and may take several weeks, but most of the prosecution’s requests are usually accepted as the evidentiary threshold at this stage is not particularly high. It is interesting to note at this stage that, contrary to earlier assessments, an arrest warrant was not requested against IDF Chief of Staff Herzi Halevi.

Israel played an active role in drafting the Rome Statute, which forms the basis of the ICC, but has never ratified the statute, thus it is not a party to it and has not granted the court jurisdiction over its territory or its citizens. The court’s jurisdiction stems from the controversial accession of the Palestinians to the Rome Statute in January 2015. Israel does not recognize the Palestinian Authority as a state entity capable of joining the statute and granting the court jurisdiction, thus it strongly opposes the examination and investigation itself. The Pre-Trial Chamber has already dealt with the question of the court’s jurisdiction over Palestine and in February 2021 determined that such jurisdiction exists. Unlike the International Court of Justice (ICJ), which deals with state responsibility, the ICC deals with individual criminal responsibility for international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

If the Pre-Trial Chamber does indeed accept the request and issues arrest warrants against the Prime Minister and Defense Minister, the implications for them will be significant, much more than for Haniyeh, Sinwar, and Deif. The arrest warrants will not be valid in Israel, but not so in the 124 countries that are parties to the Rome Statute. In theory, Netanyahu and Gallant could have immunity by virtue of their roles as Prime Minister and Defense Minister, combined with the fact that Israel has not waived this immunity by joining the ICC statute, but it is doubtful whether they would want to put this theory to the test in the near future. Until the legal situation is clarified, Netanyahu and Gallant will have to limit their travels to non-member states of the Rome Statute, including the US, which is not a member state, as well as China, India, Russia, Egypt, Turkey, Saudi Arabia, and North Korea.

The ICC prosecutor is continuing a policy aimed at emphasizing the independence of his office, showing that he does not fold under pressure not to issue arrest warrants against senior Israeli officials. He also seeks to show that, unlike past cases, he is responding relatively quickly to situations requiring his intervention, as he did in the context of the war between Russia and Ukraine when he issued arrest warrants against the Russian President and Foreign Minister.

If Israel seeks to oppose the issuance of arrest warrants, it could argue for a lack of territorial jurisdiction of the ICC and also rely on the principle of complementarity. However, the territorial jurisdiction question has already been addressed by the Pre-Trial Chamber, and an initial decision on this issue has been made, so the chances of success for such a move are not high. Regarding the principle of complementarity, which stipulates that the ICC will act only when the state itself is not acting to investigate the specific offenses, it will be difficult for Israel to show that a substantial legal investigation is indeed being conducted regarding the offenses related to the Prime Minister and Defense Minister. Thus, at this stage, the chances of issuing the arrest warrants are quite high.

The issuance of the arrest warrants could cause significant harm to Israel on the international stage, both in terms of image and substance. In terms of image, beyond the prosecutor’s decision to maintain “balance” by requesting arrest warrants against leaders of a terrorist organization along with state leaders, Israel will be marked as a country whose leaders have international arrest warrants for war crimes and crimes against humanity. In substantive terms, the issuance of arrest warrants will bolster the intent of countries to avoid selling weapons to Israel and increase the pace of Israel’s international isolation. The fact that the arrest warrant requests attribute the crime of starvation to Netanyahu and Gallant could also impact the proceedings taking place at the ICJ between South Africa and Israel and encourage judges to expand the interim orders already issued regarding Israel.

We are only at the beginning of a process that is expected to accompany Israel in the coming years, and it should not be thought that this saga will end here, as the prosecutor can request additional arrest warrants for other offenses and against additional senior officials at any stage. It is important to avoid an approach that underestimates the ICC and international humanitarian law, and to continue to adhere to the state’s obligations in all aspects and within all the international frameworks to which the state is committed.