On November 21, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) formally issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defence minister, Yoav Gallant, for crimes against humanity and war crimes committed from 8 October 2023, until 20 May 2024 ~ the period between the start of the war in Gaza and when the ICC’s prosecutor made a request for the warrants of arrest.

An arrest warrant was also issued for Hamas military commander Mohammed Deif, whom Israel claims it killed in August. The ICC chief prosecutor had also sought warrants for two other senior Hamas figures, Yahya Sinwar and Ismail Haniyeh, but withdrew his request after they were killed in the conflict. The PTC rejected legal challenges to the arrest warrants that Israel had filed on 26 September 2024, including the Court’s jurisdiction over the situation in the State of Palestine in general, and over Israeli nationals in particular.

Advertisement

The PTC noted that the acceptance by Israel of the Court’s jurisdiction is not required, as the Court can exercise its jurisdiction on the basis of territorial jurisdiction of Palestine. The ICC, The Hague-based permanent international court was established under the Rome Statute, adopted on 17 July 1998, to help end impunity for the perpetrators of the most serious crimes committed during armed conflicts. It can prosecute individuals for grave international crimes, including genocide, war crimes, crimes against humanity, and crimes of aggression that occurred after 1 July 2002, within member states (States Parties) or involving their nationals, especially in cases where national courts are unable to do so.

Any State Party to the Rome Statute may inform the prosecutor about a situation when it thinks one or more crimes falling under the court’s jurisdiction appear to have been committed. The United Nations Security Council may also refer a situation to the ICC. The prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the ICC. The PTC issues arrest warrants on the application of the Prosecutor, if it is satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the court, and the arrest of the person is necessary to ensure the person’s appearance at trial and does not obstruct or endanger the investigation or the court proceedings.

It may also be issued to prevent the person from continuing with the commission of that crime or a related crime. Once a case is referred to the ICC, the prosecutor conducts a preliminary examination of the information received regarding the alleged crime(s) to determine whether the Court has jurisdiction, and whether there is a reasonable basis to proceed with an investigation. The prosecutor is also required, in pursuance to the principle of complementarity, to ascertain whether any national authorities are conducting a genuine investigation or trial of the alleged perpetrators of the crimes.

The ICC’s involvement in the situation in the State of Palestine goes back to 1 January 2015, when Palestine accepted the jurisdiction of the court over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014,” and finally referred the matter to the prosecutor on 22 May 2018. Later, on 20 December 2019, Prosecutor Fatou Bensouda, after an assessment of the information available to her office, concluded that all the statutory criteria under the Rome Statute for the opening of an investigation had been met. However, in view of the complexity of the matter involved, the ICC prosecutor submitted a request to PTC for a ruling on the jurisdiction, which on 5 February 2021, decided that the Court can exercise its criminal jurisdiction in the situation in the State of Palestine. Finally, on 3 March 2021, Prosecutor Fatou Bensouda, announced the opening of an investigation into potential crimes committed in the State of Palestine. The conditions in Gaza prompted several other States Parties to the Rome Statute, including Bangladesh, Bolivia, Comoros, Djibouti, South Africa, Chile, and Mexico, to refer the situation to the ICC.

Later, ICC Prosecutor Karim Khan announced that the investigation, which began in 2021, had been expanded to include the current war in Gaza. On May 20, on the basis of evidence collected, he sought arrest warrants against Israel’s Prime Minister Netanyahu and Defence Minister Gallant, along with three Hamas leaders, Yahya Sinwar, Mohammed Diab Ibrahim alMasri, and Ismail Haniyeh. After detailed hearings, the PTC found reasonable grounds to believe that Netanyahu, and Gallant bear criminal responsibility for the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts as co-perpetrators for committing the acts jointly with others. In the opinion of the PTC, both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.

The PTC found that their conduct led to the disruption of the ability of humanitarian organisations to provide food and other essential goods to the population in need in Gaza. These restrictions together with cutting off electricity and reducing fuel supply also had a severe impact on the availability of water in Gaza and the ability of hospitals to provide medical care. The PTC also found reasonable grounds to believe that each bears criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population of Gaza. Netanyahu along with Gallant are now internationally wanted suspects.

But the ICC does not have its own police force to enforce its decision, and would have to rely on the cooperation of its 124 member states for their arrest and transfer for detention. In the present situation, it is, however, unlikely that they would be arrested or would be brought to trial as the ICC members have a very poor record of enforcing arrest warrants issued by the court. However, Netanyahu’s life would certainly become complicated, especially while traveling abroad without facing potential embarrassment, as many leaders may avoid being seen by him to avoid domestic and international criticism. Domestically, opponents could use the warrants to challenge Netanyahu’s leadership.

The ICC decision is also unlikely to affect the on-going Israeli military offensive in Gaza, which has killed nearly 45,000 Palestinians since October 2023. The war has uprooted nearly all of the more than two million Palestinians while reducing Gaza to rubble. Israel has not only rejected the ICC’s arrest warrants for it leaders as a horrifying display of anti-Semitism and even support for terror, but Netanyahu has unyieldingly vowed to continue the war in Gaza. Nevertheless, mere recognition of Israel’s criminal behaviour by the ICC is in itself a significant development.

The arrest warrants would serve as a moral victory for Palestine and intensify international pressure on Israel, isolating it further on the world stage as more countries would now weigh the political cost of supporting it. The warrants are likely to tarnish Israel’s global reputation and diplomatic standing. The warrants could also affect the supply of weapons to Israel from ICC member states with laws limiting arms supply to states accused of human rights abuses or where there is credible reason to believe that they might use them to commit international crimes

(The writer teaches international law at Aligarh Muslim University and heads its Strategic and Security Studies Programme)