The International Criminal Court (ICC or Court) has called for the leaders of Israel and Hamas to stand trial for their crimes in the ongoing Israel-Palestine war. While their arrests are unlikely, the decision has made them international pariahs.
On Monday this week, the prosecutor of the International Criminal Court, Karim Khan, announced that he was seeking arrest warrants for political and military leaders of Hamas, and for the prime minister and defence minister of Israel. While the request had been anticipated for some weeks, the formal announcement is a significant milestone in the history of the ICC.
Khan announced that he had grounds to believe that Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (also commonly known as Dief), and Ismail Haniyeh had committed war crimes and crimes against humanity on the territory of Israel and Palestine; and that Benjamin Netanyahu and Yoav Gallant bore criminal responsibility for war crimes and crimes against humanity committed on the territory of the State of Palestine.
The prosecutor’s move is unprecedented, in that it is the first time charges have been brought against a head of government who maintains western support (albeit fractured). The real significance of the prosecutor’s actions, however, lie in the Court’s potential to overcome what Human Rights Watch called “a wall of impunity.” The Israel-Palestine conflict has been the bête noire of international criminal justice. As such, UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory, Francesca Albanese, was correct when she said that “Palestine was a litmus test for the credibility of the Court.” Indeed, considering what appears to be overwhelming evidence of crimes committed that fall under the jurisdiction of the ICC, were it not to have acted in the way that it has, the ICC would have become increasingly illegitimate and redundant.
Reaction to the request for arrest warrants has been vitriolic and disappointingly predictable. Britain and the United States reiterated their oft-practised claim that as Palestine is not recognised as a state, it has no right to sign the Rome Statute. And as Israel is not a signatory to the Rome Statue, the ICC thus has no jurisdiction to investigate alleged crimes. Such complaints, however, have become tedious; the issue of Palestine’s status as a signatory to the Rome Statute has been resolved in a way that it made it very clear that the ICC is in no way determining Palestine’s status as a state.
Israel, the United States, and Germany expressed shared outrage over what they argued was a “false impression of equivalence” between Israel and Hamas by applying for the warrants at the same time. Netanyahu rejected with “disgust the comparison of the prosecutor in The Hague between democratic Israel and the mass murderers of Hamas,” while US Secretary of State Anthony Blinken rejected “the prosecutor’s equivalence of Israel and Hamas.” Australia’s Opposition leader parroted these objections when criticising Prime Minister Anthony Albanese’s response to the request for arrest warrants: it “is completely and utterly repugnant, to compare the Israeli prime minister to a terrorist organisation leader.” But as the first prosecutor of the ICC, Luis Moreno Ocampo, correctly noted, part of the prosecutor’s job is to act with impartiality: “The prosecutor is not saying they’re equal, they’re saying both are suspects.”
The reaction from the US and Israel, while expected, is also frustrating. The US’ issues with the Court have been well-documented. However, late last year, the US pressured the Court to issue an arrest warrant for Russian President Vladimir Putin. Neither Russia nor Israel are signatories to the Rome Statute. Thus, for the US to now claim that the Court should not investigate possible crimes committed by Israeli nationals because Israel is not a state-party to the ICC is highly hypocritical.
Israel’s objections are frustrating for different reasons. The ICC prosecutor has shown himself, through changing the focus of the situation in Afghanistan away from the US, to be politically cautious, and wary of criticism of the Court from great powers. One senses that, ideally, he would have preferred not to request arrest warrants for Netanyahu and Gallant. But Israel’s actions left him with no choice. It was clear that there was increasing pressure on the Court to investigate the actions of Israel post-October 7. Some evidence of moderation by the Israeli Defense Forces (IDF) might have persuaded the prosecutor to only focus on the actions of Hamas. Israel could also have avoided the Court’s focus had they demonstrated a willingness to conduct even the most basic legal investigations into alleged war crimes committed by IDF personnel. The Court’s complementarity principle means that it is a court of last resort, and that it can only act if relevant national courts are unwilling or unable to investigate alleged crimes that fall under the ICC’s jurisdiction. However, Israel has a long history of intransigence when it comes to investigating and adequately prosecuting members of the IDF, which would have informed the prosecutor’s decision not to wait for Israel to act.
Assuming the Pre-Trial Chamber acquiesces to the prosecutor’s request for arrest warrants, what is the likelihood of any of the five suspects appearing in The Hague? It is unlikely that Sinwar or Dief will ever be tried; even if Israel were to capture them, it is highly unlikely that Israel would extradite them to the Hague. Haniyeh, acknowledged as the political leader of Hamas, resides in Qatar, which is a non-state-party to the Rome Statute and thus not obliged to cooperate with an ICC arrest warrant. It is also unlikely that his travel will be curtailed, as he has a history of travelling to countries that are non-state parties to the Rome Statute.
It is also unlikely that Netanyahu or Gallant will appear in the Hague any time soon, either. But the obligation on signatories to the Rome Statute to cooperate with arrest warrants will impact their ability to travel, especially Netanyahu. Netanyahu presents Israel as belonging to a western, liberal democratic order, of which he has, up to now, been free to travel to and move around in. However, most of the other members of this self-defined group (the notable exception being the US) are states-party to the Rome Statute, which means they will be bound to cooperate with arrest warrants.
Less tangibly, but no less important, is that Netanyahu and Gallant will be cast as pariahs, suspected war criminals, and grouped with those that they have worked so hard to define themselves against.
The Court will not be able to avoid the inevitable political fallout from its actions. But in behaving the way that it has, it has strengthened its legitimacy as an agent of international criminal justice.
