Tue May 21

ICC arrest warrants in Israel-Hamas war are a major test for international justice

Written by: Amy Maguire, Associate Professor in Human Rights and International Law, University of Newcastle

The request by Karim Khan ^[1], chief prosecutor of the International Criminal Court (ICC), for arrest warrants for Israeli and Hamas leaders is a significant step in the effort to bring justice to the victims of international crimes in Israel and Palestine.

Khan has asked ICC judges to issue warrants ^[2] on charges of crimes against humanity and war crimes against Yahya Sinwar (head of Hamas in Gaza), Mohammed Diab Ibrahim Al-Masri (also known as Mohammed Deif, the commander of the military wing of Hamas) and Ismail Haniyeh (head of Hamas’ political bureau, based in Qatar).

They are alleged to bear responsibility for international crimes on Israeli and Palestinian territory at least since October 7 2023.

Khan has also requested arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, again for war crimes and crimes against humanity. They are alleged to be responsible for crimes in the Gaza Strip since October 8 2023.

What have they been accused of?

Sinwar, Al-Masri and Haniyeh are charged in relation to the attacks on Israeli civilians on October 7, in which an estimated 1,200 Israeli civilians were killed and at least 245 taken hostage.

In addition, the Hamas leaders are accused of other crimes in the context of the ongoing conflict in Gaza. These include:

Families of hostages at a rally in Israel.

Families and supporters of Israeli hostages held by Hamas in Gaza at a rally in Tel Aviv in December. Ariel Schalit/AP

Khan said ^[3] in his statement:

I saw the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today. Speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness. These acts demand accountability.

Khan noted his office conducted extensive investigations, including site visits and interviews with victim survivors, and relied on evidence relating to the conditions in which Israeli hostages have been held in Gaza.

Netanyahu and Gallant are alleged to be criminally responsible for a number of international crimes since Israel launched its military action against Hamas in Gaza on October 8, including:

A Palestinian child waiting for food aid.

A displaced Palestinian child holds up an empty pot as she waits to receive food aid in the Rafah refugee camp in January. Haitham Imad/EPA

The prosecutor said ^[4] the alleged crimes:

… were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to state policy. These crimes, in our assessment, continue to this day.

Noting the horrific suffering of civilians in Gaza, including tens of thousands of casualties and catastrophic hunger, Khan alleged ^[5] that the means Netanyahu and Gallant chose to pursue Israel’s military aims in Gaza

…namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.

What does this mean in practice?

The next step in this process is for three judges in the ICC pre-trial chamber to decide if there are reasonable grounds to believe war crimes and crimes against humanity have been committed. If so, they will issue arrest warrants. It could take months for the judges to make this assessment.

If arrest warrants are issued, however, they are very unlikely to be executed. And if none of the accused can be arrested, then no trial will take place because the ICC does not try people in absentia ^[6].

So, why is it unlikely the accused will be arrested? There are several reasons.

First, none of the accused will hand themselves in for prosecution. Netanyahu was outraged by Khan’s decision, calling it ^[7] “a moral outrage of historic proportions” and accusing him of antisemitism.

Hamas has issued a statement strongly denouncing ^[8] the issuing of arrest warrants against its leaders, claiming it equates “the victim with the executioner”.

Second, none of the accused are likely to put themselves in a position to be arrested and turned over to the ICC. Israel is not a signatory ^[10] to the Rome Statute ^[11] that established the ICC. Its chief ally, the United States, is also not a member. This would guarantee Netanyahu and Gallant could travel ^[12] to the US without fear of arrest.

Meanwhile ^[13], Haniyeh is based in Qatar, which is also not an ICC member state. He may need to curtail travel to other states to avoid risk of arrest. The other two accused Hamas leaders are believed to be hiding in Gaza ^[14] – they appear more at risk of being killed by Israeli forces than arrest.

However, Palestine is an ICC member state, so technically it is obliged to cooperate with the court. In practice, though, it is hard to see how this will happen.

Third, the ICC relies on its member states to enforce its actions ^[15]. It has no independent police force or capacity to execute arrest warrants.

The ICC has 124 state parties ^[16], while the United Nations has 193 member states ^[17]. This disparity makes clear the gap between what the ICC seeks to achieve – namely, universal accountability ^[18] for international crimes – and what it can practically achieve when it lacks the support of implicated or nonaligned countries.

International Criminal Court exterior view.

The International Criminal Court in The Hague, Netherlands. Peter Dejong/AP

What does this mean for the ICC?

Khan’s move is unprecedented in one respect. This is the first time the prosecutor’s office has brought charges against a head of state ^[19] who is supported by Western nations.

The move triggered a predictable response from the US. President Joe Biden called it “outrageous” and added ^[20]:

[…] there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security.

But Khan emphasised ^[21] the importance of the ICC’s independence and impartiality, as well as the equal application of law.

No foot soldier, no commander, no civilian leader – no one – can act with impunity.

The ICC has previously confirmed its jurisdiction ^[22] over crimes allegedly committed by the five leaders this week. The prosecutor will be confident the pre-trial chamber will issue the arrest warrants, based on the highly visible nature of the alleged crimes and the volume of evidence available to show reasonable grounds for prosecution.

The request for arrest warrants undoubtedly complicates relations between Israel and its allies that are ICC member states. In such a politically charged context, it is fair to describe this effort as a test of the international community’s commitment to the goal of ending impunity for international crimes.