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ICC seeks arrest of Israeli and Hamas leaders. What happens next?

Benjamin Netanyahu among leaders sought by International Criminal Court. Legal experts explain next steps
People demonstrate against the visit of Israel's Prime Minister Benjamin Netanyahu in The Hague, on 6 September 2016 (AFP/ANP/Bart Maat)

The International Criminal Court (ICC) is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as well as three Hamas leaders.

Gallant and Netanyahu face war crimes and crimes against humanity charges over the starvation of civilians as a method of war; wilfully causing great suffering; wilful killing; intentional attacks on a civilian population and extermination, alongside several other charges.

The Hamas leader in Gaza Yahya Sinwar, its military wing's commander-in-chief Mohammed Diab Ibrahim al-Masri, better known as Mohammed Deif, and its political leader Ismail Haniyeh were also named in a statement by chief prosecutor Karim Khan. 

They face charges related to extermination, murder, the taking of hostages, and sexual assault and torture, alongside several other charges.

The warrants have not been issued yet: an application has been presented by the ICC prosecution, and will now go to ICC judges in its pre-trial chamber. 

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It marks one of the most significant legal and diplomatic setbacks for Israel in decades. 

Middle East Eye spoke with international law experts about the likelihood of an arrest warrant being issued, and what the next steps of the process entail. 

What will ICC judges be looking at?

In the coming days, and possibly over weeks and months, ICC judges will look at the evidence compiled by the prosecutor.

“Only the pre-trial chamber of the ICC (which is composed of three judges) may, at the request of the prosecution, issue a warrant of arrest,” Giovanni Chiarini, an international criminal lawyer, told MEE. 

“The judges will examine the evidence submitted by the prosecutor, and evaluate two procedural requirements.”

He said the judges would need to be convinced that there are “reasonable grounds” to believe that at least one crime within the court’s jurisdiction had been committed. 

They must also be satisfied that the arrest of those named “appears necessary”, on the basis that a warrant does the following: ensures they appear at trial, ensures they do not endanger an investigation or court proceedings, prevents the person from continuing the crime which falls within the court’s jurisdiction. 

The ICC, which was formed in 2002, can prosecute individuals accused of war crimes, crimes against humanity, genocide, and the crime of aggression. 

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Under the principle of complementarity, the ICC acts as a court of last resort when member states are unwilling or unable to try heinous crimes themselves.

It can prosecute nationals of its 124 member states, as well as individuals who commit crimes on the territory of member states. It also has jurisdiction over cases referred to it by a UN Security Council resolution. 

Israel is not a member of the ICC. However, as the state of Palestine was granted membership in 2015, the court can investigate Israeli individuals for crimes committed in the occupied Palestinian territories, which include Gaza, the West Bank and East Jerusalem. 

In 2021, the ICC opened an official investigation into allegations of war crimes and crimes against humanity committed in occupied Palestine since June 2014. 

Chief prosecutor Khan said last year that the court also had jurisdiction over crimes committed by Hamas in Israel and by Israelis in Gaza during the current war.

Does an application always result in a warrant?

There is no specific time frame within which the pre-trial judges evaluate the evidence. 

“In some cases it took up to one year, while in other cases (for example, regarding Russian President Vladmir Putin) only very few months,” said Chiarini. 

In almost all previous cases, the prosecutor’s application has been approved by the pre-trial judges. 

“Yes, there are examples of prosecutorial applications being rejected, but it is very rare,” said Chiarini. 

'The evidence is so overwhelming that if the pre-trial chamber bows down to [external] pressures, then it will lose its legitimacy'

- Neve Gordon, law professor

He cited the case of Sylvestre Mudacumura, the former leader of a Rwandan militia who was sought for crimes committed in the Democratic Republic of Congo. 

In May 2012, the application for a warrant against Mudacumura was initially dismissed by the pre-trial chamber for a “lack of specificity”.

“But then the prosecutor re-applied a few weeks later and, in July 2012 the judges issued the warrant of arrest,” Chiarini said. 

In the case of former Sudanese President Omar al-Bashir, the prosecution applied for two arrest warrants in 2009 and 2010, for crimes against humanity and war crimes, and genocide, respectively. 

In the latter, the pre-trial chamber initially rejected the application on grounds of insufficient evidence, however the warrant for crimes of genocide was later added after the prosecutor submitted an appeal. 

Eitan Diamond, of the Diakonia International Humanitarian Law Centre in Jerusalem, told MEE: “It is likely that the application will be approved as public applications of this sort have rarely been rejected.

“It seems that the ICC prosecutor went to great lengths in this case to ensure that his office had secured ‘reasonable grounds’ to believe that crimes within the jurisdiction of the court had been committed.”

What happens if the warrant is issued?

If the arrest warrants are issued, the ICC will be reliant on its member states to carry out an arrest as part of their legal obligations as signatories of the Rome statute. The court does not have a military force so cannot compel arrests itself. 

The named individuals are anticipated to restrict their travel to avoid arrest. 

“I don’t think that Sinwar or Deif will be travelling anywhere in any case,” said Diamond. 

“For Netanyahu and Gallant as well as Haniyeh - if the pre-trial chamber issues the arrest warrants as requested, then I expect that they will indeed be cautious about where they travel.”

Russia's Putin, who was among senior Moscow officials indicted by the ICC in March last year over the war on Ukraine, has restricted his travel ever since.

'If the suspects will not present themselves physically to The Hague, a trial cannot start'

- Giovanni Chiarini, international lawyer

Hamas political leader Haniyeh, who is based outside of Gaza, spends much of his time in Turkey and Qatar. 

Ankara and Doha are not signatories to the Rome statute, but could come under political pressure to carry out arrests in the event of the warrant being confirmed. 

As for Sinwar and Deif, who are in Gaza, they would theoretically be expected to be arrested as the enclave is under the jurisdiction of the ICC. But there is no authority in Palestine that would be willing to do that.

“There is no one who could arrest them on behalf of the state of Palestine even if doing so was a politically palatable option for the Palestinian Authority,” said Diamond. 

“Israel is, of course, very keen to detain them but not, I don’t think, for the purpose of passing them on to the ICC.”

If the suspects are arrested, following the issuance of a warrant, they would be brought to The Hague. 

“The suspects, if brought to The Hague, will be facing a ‘confirmation of charges hearing’, which is not a trial, but a pre-trial hearing where the prosecutor presents sufficient evidence for the case to go to trial,” said Chiarini.

At that point, the suspects will have defence counsels present, and can challenge the prosecution and its evidence. 

“If the suspects will not present themselves physically to The Hague, a trial cannot start, because the ICC cannot commence any proceedings in absentia under Article 63 of the Rome Statute,” Chiarini said.

How will Israel’s allies respond?

The US, which is not a signatory to the Rome Statute, has in recent weeks reiterated its rejection of the ICC taking action against Israel and its leaders. 

Earlier this month, Axios reported that Congress members from both parties in the US warned the ICC it would retaliate against arrest warrants being issued to Israeli leaders, including by introducing legislation sanctioning ICC officials. 

The ICC subsequently hit out at threats of retaliation against the court and its staff, stating that such threats against court officials performing their duties breached the Rome Statute. 

“The evidence is so overwhelming that if the pre-trial chamber bows down to [external] pressures, then it itself will lose its legitimacy,” Neve Gordon, an Israeli professor of international law and human rights at Queen Mary University of London, told MEE.

He said that while the US was not a member of the ICC, and so the arrest warrant application would have little impact on Washington legally, it could impact “the court of public opinion” and force it to rethink arms sales linked to heinous crimes.

As for allies of Israel that are signatories, like the UK, the impact will be more direct.

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“With the ICC arrest warrant [application], it's becoming more and more difficult for David Cameron and Rishi Sunak to deny complicity of trading arms with war crimes and crimes of genocide,” said Gordon, referring to the British foreign secretary and prime minister. 

He said that in the event of an arrest warrant, even if British political leaders did not want to arrest Netanyahu or Gallant should they travel to British soil, the UK courts would likely oblige.

Member states have in the past flouted that obligation: both South Africa and Jordan failed to arrest Sudan's Bashir during visits to their respective countries, drawing the ire of human rights groups and the ICC itself. 

But Israel's allies failing to carry out arrests in the event of a warrant will come at a political cost, and would jeopardise the legitimacy of the ICC. 

“Every step like [today's development] is limiting terrain that Israel can manoeuvre in,” Gordon said. 

“It gives credence to those that have been claiming Israel's actions in Gaza and the West Bank are egregious violations and there's a price to pay for these violations.”

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