Indian Council of World Affairs

Abstract: The ICC’s arrest warrants have set a new precedent in the international judicial system because it is for the first time that the Court has issued arrest warrants against leaders of a country close to the west, along with issuing an arrest warrant against a military commander of Hamas for the October 7 terrorist act. 

On November 21, Pre-Trial Chamber I of the International Criminal Court (ICC)[i], in its composition for the Situation in the State of Palestine[ii], issued arrest warrants for Israel’s Prime Minister (PM) Benjamin Netanyahu and former Defence Minister (DM) Yoav Gallant, along with Mohammed Deif, Commander of Hamas military wing al-Qassam Brigades. Israel, however, claimed that Commander Deif had been killed by its forces, but the ICC still issued an arrest warrant against Deif, as his death has not been confirmed. ICC also sought arrest warrants against Hamas leaders Ismail Haniyeh and Yahya Sinwar, but it dropped the charges after their deaths were confirmed on August 9, 2024, and October 25, 2024, respectively. The State of Israel challenged ICC’s jurisdiction under articles 18 and 19 of the Rome Statute on September 20, 2024.[iii] However, ICC Pre-Trial Chamber I rejected the State of Israel’s challenges and issued warrants of arrest for the Israeli PM and former Defence Minister. The judges found that Netanyahu, Gallant and Deif bore the “criminal” responsibility for crimes against humanity and war crimes committed from October 7, 2023, until at least May 20, 2024, the day the prosecutor filed the applications for warrants of arrest.[iv] The paper aims to identify the ICC’s charges, their applicability regarding jurisdiction and the responses from the concerned parties to the Israel-Hamas conflict. 

What Are the Charges? 

The arrest warrants issued by ICC against two Israeli and one Hamas leaders were based on the charges that judges of the Chamber found following the statements of the witnesses and the records.[v]  The three judges’ Chambers at the ICC considered that the “alleged conduct of PM Netanyahu and DM Gallant falls within the jurisdiction of the court.” The court's jurisdiction extended to Gaza, the West Bank and Jerusalem. Besides, the Chamber has the discretionary proprio motu (on one’s own initiative) powers to determine the admissibility of the two cases. The judges at the Chamber found reasonable grounds to believe that Netanyahu and Gallant bear “criminal responsibility for conducting the war crime of starvation as a method of warfare; and the crimes against humanity of murder and persecution.” The Chamber further found the two as “civilian superiors” for the war crime of intentionally directing an attack against the civilian population.[vi] In addition, Israel is also facing a “genocide” case at the International Court of Justice (ICJ) filed by South Africa and at least 14 other countries, including Spain, Bolivia, and Chile, have announced their intention to intervene in the case. The interveners do not formally join a party or a complainant, but simply present their position on the law (facts) without formally taking sides.[vii] The ICJ panel comprising 17 judges ruled that there exists a “plausible risk” that Israel violated the 1948 Genocide Convention in Gaza and imposed several provisional measures on Tel Aviv.[viii] However, the court did not order an immediate ceasefire in Gaza. Israel had fervently denied the allegations that its forces committed genocide against Palestinians in Gaza. 

On November 21, 2024, the Chamber also found that “crimes against humanity of murder; extermination; torture; and rape and other form of sexual violence; as well as the war crimes of murder, cruel treatment, torture; taking hostages; outrages upon personal dignity were part of a widespread and systematic attack directed by Hamas and other armed groups against the civilian population of Israel.”[ix] Therefore, the Judges’ found reasonable grounds to hold the Hamas commander Deif bears the criminal responsibility for “crime against humanity” that he committed through the “acts jointly and with others; having ordered or induced the commission of the crimes; and for his failure to exercise proper control over forces under his effective command and control.” 

Responses to Arrest Warrants 

Israeli officials slammed the warrants and considered them as “modern anti-Semitism in the guise of justice.”  Netanyahu stated through a video statement that, “No outrageous anti-Israel decision will prevent us-and it will not prevent me-from continuing to defend our country in every way. It was a dark day in the history of humanity, and ICC has become the enemy of humanity.”[x] The Israeli government considers that the ICC’s decision was meant to legitimise terrorism and expose its anti-Semitic nature.  Also, Israel had raised questions regarding the neutrality of the Pre-Trial Chamber I Judge Beti Kohler due to her previous employment with the ICC Office of the Prosecutor. In October 2024, a Romanian-origin Judge, Lulia Motoc, was replaced by Kohler on health grounds. 

The Palestinians felt vindicated that their accusations of Israel’s “war crimes” have been considered by the ICC. Hamas had welcomed the decision of the ICC to issue the arrest warrants for Israel’s PM and Defence Minister.[xi] However, Hamas demanded the withdrawal of arrest warrants on its leaders, including Mohammed Deif, claiming that the ICC’s Prosecutor was “equating the victim with the executioner.”[xii]  In addition, Hamas criticised the delaying of the issuance of the arrest warrants by the ICC to Israeli leadership, which resulted in a humanitarian catastrophe and the death of thousands of Palestinians. 

On December 15, 2024, Israel filed two appeals against the ICC’s arrest warrants. The first appeal stated Chief ICC Prosecutor Khan should have provided a new notification of his investigation into the alleged war crimes because Khan relied on a notification issued in 2021 of a probe that the court initiated at that time. The second appeal stated that the ICC lacks jurisdiction over Israel, as the state is not a member of the ICC, a claim the state has argued since the warrants were issued.[xiii]

It is not only Israel that vehemently rejected the ICC’s charges, but several other countries including France, the US, Austria, Argentina, and Hungary, did not accept the ICC’s arrest warrants and questioned its authority, as Israel is not a member of the ICC. President Joe Biden’s administration considered the ICC’s charges “outrageous,” while the French government claimed that the ICC cannot charge the Israeli PM, as Israel is not its member. However, countries such as Switzerland, Sweden, South Africa, Norway, the Netherlands, Italy, Germany and the European Union have accepted the ICC’s verdict and considered it “binding” on all member states to arrest them. These states, being members of the ICC, are compelled to arrest the Israeli Prime Minister and former Defence Minister if they visit their countries. 

Several international media outlets have shed light on the intricacies of the ICC’s arrest warrants. The Washington Post’s Editorial Opinion piece on November 24 2024 stated that, “The ICC is not the venue to hold Israel to account. The ICC is needed to help resolve war crimes perpetrated in Syria, Sudan and Myanmar. ICC’s focus on Israel will make it harder for the court to resolve the conflicts in these countries.”[xiv]  The Post also emphasized that unlike Syria, Sudan and Myanmar, Israel is a democratic country capable of investigating its security forces. However, a counterargument has been put out in Al-Jazeera’s opinion piece, which suggested that “the default grounds for the ICC to exercise jurisdiction is the commission of international crimes on the territory or by the nationals of either a state party to the ICC or a non-state party that has accepted the jurisdiction of the court. The three states (Syria, Sudan and Myanmar) referred to neither joined the ICC nor accepted its jurisdiction like Israel.”[xv] Nevertheless, the ICC has still conducted the proceedings in cases of “war crimes” and “crimes against humanity” against perpetrators in Syria, Myanmar, and Sudan. 

The Possible Impact of ICC’s Arrest Warrants 

The arrest warrants are a significant blow to Israel’s international standing and its ongoing projection of its military campaign in Gaza. The arrest warrants would put pressure on nations that are supporting Israel. Notably, it will have significant diplomatic and political challenges for Germany, UK and many other countries, which are members of the ICC and staunch supporters of Israel. There are more than 124 countries that are signatories to the ICC excluding US, Russia, and China, which are “legally” obliged to arrest the Israeli PM and former Defence Minister. It means that if the Israeli PM, former Defense Minister, and Hamas commander set foot in any of the signatory countries, they must be arrested and handed over to the court under ICC statute, Article 89(1).[xvi] ICC also encourages the non-member states to execute the warrants because the court has no enforcement mechanism. 

Israel’s PM and former Defence Minister’s travels will be significantly restricted due to the ICC’s verdict. They will be joining the list of former and current heads of state wanted for war crimes according to ICC, including Vladimir Putin, Omar al-Bashir of Sudan, and the late Slobodan Milosevic.[xvii] It is also essential to see in the future that those countries which are signatories of the ICC and objected to its decision for issuing arrest warrants will be able to host “fugitives” of international law. Last year, the Russian President could not travel to South Africa, fearing his arrest because of the ICC’s verdict that Ukrainian children had been abducted since the Russia-Ukraine conflict unfolded. Israeli leadership, however, will be able to participate in the peace talks to be held in Qatar and Egypt, which are not ICC members. 

The arrest warrants have expanded the international isolation of the Israeli government, as its top political leaders have been accused of “genocide” at the ICJ and charged with “criminal” responsibility at the ICC.[xviii] Also, the arrest warrants has increased legal challenges for Israeli PM Netanyahu who is also facing criminal and civil lawsuits in Israel. The ICC’s arrest warrants has emboldened the opposition in Israel to weaponise the verdict to target Netanyahu and his close associates. 

Conclusion 

The ICC’s arrest warrants have set a new precedent in the international judicial system because it is for the first time that the Court has issued arrest warrants against leaders of a country close to the west, along with issuing an arrest warrant against a military commander of Hamas for the October 7 terrorist act. The arrest warrants have shrunk the world of Netanyahu and Gallant as the risk of arrests for them has escalated because there are no statutes of amnesty for such crimes in the ICC’s jurisdiction. However, the Israeli government and its close partners, including the US, rejected the decisions. At the same time, those countries that are signatories to the Rome Statute are compelled to abide by the ICC’s verdict and have to arrest the three individuals if they have any plan to enter their countries. In addition, the Arab countries, including Jordan, Saudi Arabia, and UAE, supported the ICC’s arrest warrant for Hamas commander Mohammed Deif. In this scenario, the ICC showed that it is committed to exercising its jurisdiction on behalf of the international community to end impunity for international crimes in the future.

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*Dr. Arshad, Research Fellow, Indian Council of World Affairs (ICWA)
Disclaimer: The views expressed are personal.

Endnotes
[i]Unlike the International Court of Justice, the ICC is not part of the UN but has a cooperative and complementary relationship. It is a global court with the power to prosecute individuals for genocide, crimes against humanity, and war crimes.

[ii] Palestine Authority acceded to the Rome Statue of ICC in 2015, and ICC ruled in 2021 that it was a state.

[iii]Article 18 governs how the Court handles challenges to the admissibility of situations being investigated by the ICC’s Prosecutor. In contrast, Article 19 determines whether the case brought by the Prosecutor is inadmissible because of a jurisdictional conflict.

[iv] “Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant,” International Criminal Court, November 21, 2024, accessed https://tinyurl.com/5288z4rx, November 28, 202

[v] The ICC issues such arrest warrants when it is convinced that the state that is in question is neither able nor willing to persecute the alleged perpetrators of “war crimes” and “crimes against humanity.”

[vi]“International Criminal Court issues arrest warrants: Pre-Trial Chamber I rejects Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant (Non-UN Document),” The Question of Palestine: UN, November 21. 2024, accessed https://tinyurl.com/bdesma86, accessed December 26, 2024

[vii] “South Africa vs Israel: 14 other countries intend to join the ICU case,” UN, October 30, 2024, accessed https://tinyurl.com/uvyytz7f, December 2, 2024.

[viii] “ICJ ruled there are ‘plausible acts of genocide’ by Israel in Gaza, but stopped short of ceasefire call. What next?,” The New Arab, January 26, 2024, accessed https://tinyurl.com/22bd4djf, December 4, 2024

[ix] “Situation in the State of Palestine:ICC Pre-Trial Chamber I issues warrant of arrest for Mohammed Diab Ibrahim Al-Masri (Deif),” ICC, November 21, 2024, accessed https://tinyurl.com/2v29rsp6, December 7, 2024

[x] “Nethanyahu condemns ICC arrest warrants,” CBS News, November 22, 2024, YouTube, accessed https://tinyurl.com/26ydmckc, December 8, 2024

[xi] “World reacts to ICC arrest warrants for Israel’s Netanyahu, Gallant,” Al-Jazeera, November 21, 2024, accessed https://tinyurl.com/2rfe36sx, December 9, 2024

[xii] “What the ICC arrest warrants mean for Israel and Hamas,” BBC, May 21, 2024, accessed https://tinyurl.com/6uejpt3x, December 13, 2024

[xiii] “Israel files appeal against ICC arrest warrants for Netanyahu, Gallant,” The New Arab, December 15, 2024, accessed https://tinyurl.com/yr27uvj3, December 18, 2024.

[xiv] “The International Criminal Court is not the venue to hold Israel to account,” The Washington Post, November 24, 2024, accessed https://tinyurl.com/46knpbyr, December 19, 2024

[xv] Abdelghany Sayed. “Israel and the ICC: A legal scholar’s response to the Washington Post,” Al-Jazeera, December 2, 2024, accessed https://tinyurl.com/5x694ka6, December 18, 2024

[xvi] Frank Gardner, “Gardner: ICC warrants ‘major blow to Israel’s standing,” BBC, November 22, 2024, accessed https://tinyurl.com/k5v4dzap, December 17, 2024

[xvii] “What do ICC arrest warrants mean for Israel and the War in Gaza,” American University: Washington DC, November 25, 2024, accessed https://tinyurl.com/bkbczyu6

[xviii] “Implications of the ICC arrest warrants against Netanyahu and Gallant,” Doha Institute, November 26, 2024, accessed https://tinyurl.com/2bnu8b4k, December 24, 2024