Israel and Hamas ICC warrants, defined

As the US continues to stand by Israel amid its widening offensive in Gaza’s southernmost city of Rafah, the International Criminal Court (ICC) is considering arrest warrants for Israeli and Hamas leaders accused of grave crimes in the course of the war.

The ICC’s top prosecutor, Karim Khan, announced Monday that he is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Gallant, Hamas leader Yahya Sinwar, and the leaders of the group’s military and political wings, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh.

Though met with strong rebukes from the US and Israel, which accuse the court of antisemitism and deny an equivalence between the Israeli government and Hamas, international law advocates and nations like Australia and South Africa have praised the move as important to the fair application of international law. A panel of judges at the ICC still has to rule on the request, which involves considering whether there is sufficient evidence that Israeli and Hamas leadership have committed war crimes during and after Hamas’s October 7 attack on Israel.

But even if the ICC issues warrants, it’s not certain these leaders will ever actually be arrested. Nor is it clear that issuing warrants would meaningfully alter the course of the war in Gaza, which was set off by the October 7 attacks on Israel by Hamas, and which has now killed about 35,000 and displaced about a million in more than seven months of fighting.

That’s because the ICC’s effectiveness in prosecuting war crimes rests upon the cooperation of its member states – which do not include Israel or its closest ally, the US.

“When the court is able to do its work and not able to do its work is not so much a reflection of the court, but a function of its members and non-members,” said Kelebogile Zvobgo, a professor of government at the College of William & Mary. “It’s only as effective as countries allow it to be.”

In that sense, the ICC has often been accused of being toothless. But that has less to do with the institution itself than the willingness of the world’s superpowers to see international law equitably enforced, even when it might implicate them or their allies.

Since its inception in 2002, the ICC has been charged with prosecuting war crimes, crimes against humanity, genocide, and crimes of aggression, collectively referred to as atrocity crimes.

Based in the Hague, the Netherlands, it’s the body with the capability and authority to step in and prosecute these kinds of crimes at the highest levels. It can go after heads of state and military leaders who may have directed or otherwise served as intellectual architects of the crimes. It’s different from the International Court of Justice, where states settle disputes and where there is currently a case against Israel for the crime of genocide — a charge the ICC did not levy against either the Hamas or Israeli leaders.

US and Israeli officials have argued that the ICC lacks jurisdiction in this case, but as Palestine is a signatory to the ICC, crimes committed on its territory or by its nationals are in fact under the court’s jurisdiction.

“Absolutely, there’s jurisdiction in this case because any crime that occurred in the state of Palestine — because the court decided, for its purposes, that Palestine is a state — anything that occurred there is within the jurisdiction of the ICC if there’s no domestic tribunal or domestic body that is willing or able to investigate the crimes that occurred in Israel on October 7 and after,” Jocelyn Getgen Kestenbaum, director of the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic at Cardozo Law School, told Vox. (Palestine officially signed on to the Rome Statute in 2015.)

There are many occasions when a national tribunal is the right venue for trying war or atrocity crimes, like in the former Yugoslavia, Rwanda, or Cambodia, where the UN has previously supported national tribunals. But such a mechanism often only occurs following a regime or governmental change; it is unlikely to happen either in Israel or Palestine.

“The ICC is based on the principle of complementarity, which means that national prosecutions take priority,” Juliette McIntyre, a lecturer in law at the University of South Australia, told Vox. “States should investigate (or) prosecute the same suspects wanted for the same conduct. In this case, Israel could raise a complementarity challenge and the ICC would decide if Israel was doing enough through its own courts such that the ICC doesn’t need to step in.”

The ICC does go after people at the highest levels but doesn’t try people unless they are present in the court. It also doesn’t have its own police force or enforcement mechanisms, relying on Rome Statute signatories to fulfill those duties. That can feel like the court is ineffective and chances for justice fleeting, and it exposes the limitations of international law particularly when powerful actors like the US refuse to abide by it and its institutions.

The ICC’s prosecution record

The challenges to holding Israel’s and Hamas’s leaders accountable notwithstanding, the ICC has not been completely ineffectual in its brief history.

The ICC has issued a total of 46 arrest warrants since its founding. Just under half of them were ever brought into ICC custody and appeared before the court; seven people, including deposed Libyan leader Muammar Gaddafi, died before the ICC had the chance to try them.

There are currently 17 people subject to ICC arrest warrants who have remained at largesome for years. That includes Russian President Vladimir Putinwhose warrant for arrest was issued in March 2023 for alleged war crimes.

The 124 states that are party to the ICC’s founding document, known as the Rome Statute, are legally obligated to turn over to the court anyone on their soil with an outstanding arrest warrant. Party states, however, haven’t always complied with their legal obligations. South Africa, for instance, shirked its duty in failing to arrest Sudanese President Omar al-Bashir during his 2015 visit to the country.

Of the 10 people who have ultimately been convicted by the court, none have been heads of state. Zvobgo said that the court’s conviction record is stronger with respect to non-state actors — such as Dominic Ongwenformer commander of the Lord’s Resistance Army (LRA) in Uganda — and that’s because a state might be more willing to cooperate with the ICC in those instances.

But even if it’s unlikely that a head of state will ever be arrested or convicted, issuing warrants for their arrest can place limits on their power. McIntyre told Vox that “states that purport to uphold the rule of law will be very hesitant to trade arms with or offer backing to a head of state that has a warrant out for his arrest.”

That would be more than just inconvenient for someone like Netanyahu if the court ultimately issues his arrest warrant.

“You’re a pariah forever,” Zvobgo said. “Even if Netanyahu never steps on Dutch soil, he will be a fugitive of the court for the rest of his life.”

The ICC’s case against Israeli and Hamas leadership

Khan announced Monday that the prosecutor’s office has reason to believe Israeli and Hamas leadership “bear criminal responsibility” for war crimes and crimes against humanity in carrying out the seven-month war.

For Gallant and Netanyahu, those potential crimes include starvation and siege-like deprivation directed toward the civilian population, as well as unlawful killing. These are ongoing, amounting to “a widespread and systematic attack against the Palestinian civilian population pursuant to State policy.”

The Hamas leadership, according to the prosecutor’s office, is alleged to be responsible for kidnapping, murder, sexual violence, and torture.

In Putin’s case, it took about a month for the ICC to issue an arrest warrant after the top prosecutor requested it. That might be a guidepost for how long it might take for the court to rule on arrest warrants for Israeli and Hamas leadership, though there’s no hard deadline.

The US poses a potentially complicating factor. As a non-member of the ICC, the US has had a “hot and cold relationship” with the court over the years, Zvobgo said.

Under former President Donald Trump, the US went as far as to impose economic and diplomatic sanctions against court personnel. President Joe Biden seemed to want to change that dynamic, expressing support for the ICC prosecution of Putin and cooperating with the court’s investigation by sharing information about alleged Russian war crimes in Ukraine.

Now, however, he seems to be reversing course. He called the request for arrest warrants against Israeli leaders “outrageous” and suggested that it drew a false “equivalence” between Israel and Hamas. Secretary of State Antony Blinken also expressed interest Tuesday in working with Sen. Lindsey Graham (R-SC) to sanction the ICC.

“The Biden administration’s condemnation of the ICC prosecutor is likely to be music to the ears of Vladimir Putin and any other serial human rights violators under investigation,” said Michael Becker, a law professor at Trinity College Dublin. “US statements in support of human rights, anti-impunity, and the rule-of-law are undermined, if not eviscerated, when the US attacks an independent and impartial judicial process simply because it disagrees with a prosecutor’s decisions or because individuals who are the leaders of a US ally may face charges.”

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