ICC’s Israel and Hamas Arrest Warrants: Here’s What to Know

On 20 May, the ICC’s Prosecutor requested arrest warrants against the Israeli Prime Minister and three Hamas leaders. This historic decision, though, has aroused criticism from Israel and its Western allies. 

Prosecutor Karim Khan KC filed applications for the International Criminal Court to issue arrest warrants for Israeli PM Benjamin Netanyahu and Israeli Defence Minister Yoav Gallant, along with Hamas’s political leader Ismail Haniyeh, Al Qassem Brigades leader Mohammed Deif and Hamas’s leader in Gaza Yahya Sinwar.

Khan said in the ICC statement, “We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy.” 

ICC chief prosecutor accused both Netanyahu and Gallant of “war crimes,” including “causing great suffering, or serious injury,” intentional killing through attacks against a civilian population.

He added, “We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organisational policies.”

Three ICC judges now have to decide whether to issue the arrest warrants, allowing a case to proceed. The decision will take months. 

If the judges issue an arrest warrant against Benyamin Netanyahu, it would be an exceptional decision for the Hague, which has been in office since 2002. Indeed, it would thus be the first time the ICC would target a leader supported by the West.

And it would be only the fourth time that a warrant would be issued against a leader in office, after the Sudanese Omar El Bashir, the Libyan Muammar Gaddafi and, more recently, Russia’s Vladimir Putin.

Following the ICC chief’s announcement, Benjamin Netanyahu said in a statement, “With what audacity do you dare compare the monsters of Hamas to the soldiers of the IDF, the most moral army in the world?”

In another statement, Hamas denounced “the attempts of the Prosecutor of the International Criminal Court to equate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders.”

Biden deemed the decision “outrageous”. He also stated, “Let me be clear: we reject the ICC’s application for arrest warrants against Israeli leaders.”

What is the International Criminal Court, and what power does it hold?

The International Criminal Court (ICC) is the first permanent international criminal Court based in The Hague, Netherlands. It prosecutes individuals for severe crimes like genocide, crimes against humanity, and war crimes, and since 2018, the crime of aggression.

The ICC complements national criminal justice systems, intervening only when countries cannot prosecute these crimes. 

Established in 1998 by the Rome Statute, the ICC has 124 member states, including notable non-members: the United States, Israel, Russia, China, and India. Unlike the International Court of Justice (ICJ), which handles disputes between states, the ICC prosecutes individuals.

The ICC was created after establishing specific tribunals for crises like those in the Former Yugoslavia and Rwanda.

The ICC’s formal investigation into possible crimes in occupied Palestine was initiated and led by the current Prosecutor, Karim Khan KC, in 2021 after a preliminary examination that began in 2015.

Following a referral from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti on 17 November 2023, Khan confirmed that the investigation remains ongoing and now includes the escalation of hostilities and violence since the attacks of 7 October 2023.

What are Israel’s Netanyahu and other ministers and Hamas leaders being accused of?

According to Karim Khan KC, Prime Minister Netanyahu and Defence Minister Gallant formed a “common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel”.

The ICC’s application includes charges of the war crime of “intentionally using starvation of civilians as a method of warfare” and other war crimes and crimes against humanity related to starvation and violence against the Gazan civilian population.

Regarding Hamas leaders, Khan KC is accusing them of murdering hundreds of civilians on 7 October 2023 and the taking of at least 245 hostages. The ICC’s decision charges include crimes against humanity, such as extermination, murder, rape, and torture, and war crimes, which include hostage-taking, sexual violence, torture, cruel treatment, and degrading treatment of hostages during captivity.

Although the Prosecutor ensured supporting evidence along with the legal analysis, the charges of rape and sexual violence against the Hamas resistance group were not founded.

Indeed, according to a report published by the Associated Press (AP) titled ‘How 2 debunked accounts of sexual violence on Oct. 7 fueled a global dispute over Israel-Hamas war‘, the claims of sexual violence and rape by Hamas are false.

In the article, Chaim Otmazgin, an Israeli who accused Hamas of sexual violence, said, “It’s not that I invented a story … At the end, it turned out to be different, so I corrected myself.” 

After being interviewed by the news agency, Otmazgin, along with his colleague Yossi Landau, who accused the Hamas resistance movement of committing rape and other sexual violence acts on 7 October, are now admitting that they were mistaken and had misunderstood what they witnessed.

According to the Head of the Gaza Government Media Office, Salama Marouf, these false claims are used as Israeli propaganda to justify Israeli crimes against the Palestinian people.

What’s next?

According to the Rome Statute (art.58), the Pre-Trial Chamber will issue a warrant against Netanyahu and Hamas leaders if it believes there are “reasonable grounds” that a person has committed a crime within the Court’s jurisdiction. 

In this case, the arrest of Netanyahu and Hamas leaders is necessary.

Article 63 of the Rome Statute states, “The accused shall be present during the trial.” Thus, the ICC cannot try individuals in absentia, which makes the custody of the accused paramount for prosecution.

The ICC depends on state cooperation to enforce its decisions, including arrest warrants. If arrest warrants are issued, the 124 states parties to the Rome Statute are obliged to arrest and transfer the suspects to the Court if they enter their countries.

If the suspects are arrested, trials for the most serious international crimes typically take years, following the high standards of the Rome Statute. These trials involve gathering and preserving reliable evidence, which is particularly challenging in active conflict zones and often requires state consent for territory access. 

The complexity of ICC trials is increased by the need for legal representation, witness testimony, strong victim participation, and the involvement of multiple perpetrators and numerous victims and incidents, all of which contribute to these proceedings’ lengthy and costly nature.