May 20th 2024, the ICC Prosecutor Karim A.A Khan filed an application before the Pre-Trial Chamber of the International Criminal Court, requesting the granting of arrest warrants for three senior Hamas officials and two senior Israeli officials. Among those named were Israeli Prime Minister Benjamin Netanyahu and Israeli defense minister Yoav Gallant. The request was equally made for the arrest of Muhammad Deif, Hamas’s military chief. Applications for the two other Hamas leaders were withdrawn earlier this year after their deaths were confirmed.
November 21st 2024, the Pre-Trial Chamber issued its verdict on the application and granted arrest warrants for the two Israeli figures and Hamas’s military chief. The status of the arrest warrant for Hamas’s military chief is uncertain as his death has been recorded and not confirmed. As for Netanyahu and Gallant, the warrants stand and should be executable. This article will explore the mechanisms of the International Criminal Court and the grounds upon which the arrest warrants were granted.
What Is the International Criminal Court (ICC) and How Does it Function?
The International Criminal Court was established by the Rome Statute in 1998 and entered into force in 2002. Under Article 1, the purpose of the Court is to “have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdiction.”
The Statute outlines 3 main types of crimes the ICC presides over. First, genocide is defined under Article 6 as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” Second, crimes against humanity are defined under Article 7 as a widespread or systematic attack directed against any civilian population” ranging from murder, enslavement and torture to enforced disappearances and others. Third, war crimes are defined under Article 8 as “crimes in particular when committed as part of a plan or policy or as part of large-scale commissions of such crimes” with particular reference to breaches of the Geneva Conventions of 1949. It is important to know that the States party to the Rome Statute have not yet reached a consensus on the definition of the crime of aggression making the ICC unable to prosecute individuals for this act.
The Court exercises its jurisdiction ratione temporis, meaning that it may only prosecute crimes committed after the entry into force of the Rome Statute (Article 11). There are several courses of action outlined in Article 13 in which the ICC can exercise jurisdiction. First, one of the above-mentioned crimes is referred to the ICC by a State that is party to the Statute. Second, the Security Council may refer to the question if they are acting under Chapter 7 of the UN Charter (action with respect to threats to peace, breaches of peace, and acts of aggression). Third, the ICC Prosecutor may initiate an investigation on their own on the basis of information on crimes within the jurisdiction of the Court.
Which Crimes Were the Arrest Warrants Based Upon?
In order for the ICC to issue warrants against individuals, the Pre-Trial Chamber must determine that there are “reasonable grounds to believe” that the named individuals have committed the alleged crimes.
In its verdict, the Pre-Trial Chamber found there to be 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, prosecution and other inhumane acts” When addressing Deif, the panel concluded it had found reasonable grounds to believe that he was responsible “for the crimes against humanity of murder, extermination, torture and rape and other forms of sexual violence as well as the war crimes of murder, cruel treatment, torture, taking hostages, outrages upon personal dignity.”
The responsibility to enforce the arrest warrants is upon the parties to the Rome Statute which then must transfer the detainees to the ICC for detention. Netanyahu and Gallant could travel to many Middle Eastern Countries and even the United States without fearing arrest as they are not parties to the Statute and therefore have no obligation to enforce it. Even if the implementation of this measure seems limited, former ambassador of the Clinton Administration David Scheffer affirmed that the warrants “send a very strong signal against impunity and a very strong signal to all sides to comply with international humanitarian law, international criminal law and to, above all, protect the rights and safety of civilians.” If these figures do not appear before the ICC or are not arrested, legal submissions can be made but official hearings cannot begin.
What Is the Stance of the International Community on the Arrest Warrants?
In principle, if these figures go to any of the 124 States which are parties of the ICC they would risk arrest. In practice, this may prove difficult to implement as world leaders are divided on this matter. Hungary as a signatory and ratifier of the Rome Statute denounces its obligation to enforce the arrest warrants for reasons of constitutionality. Netanyahu has deemed the warrants to be “anti-semitic” while President Joe Biden has labeled them as “outrageous”.
Orbán called the decision “outrageously brazen” and said the judgement “will have no effect in Hungary. Featured Image Courtesy of Balázs Mohai/AP.
Other countries such as Ireland, Spain, Italy, and The Netherlands have vowed to respect the decision of the ICC and enforce it if necessary. Much remains to be seen on the evolution of the situation however, German Foreign Minister Baerbock has remarked that “the momentum now seems to be closer than it was a few days or even a few weeks ago.” Even though the implementation of the arrest warrants is not a universal obligation, the ICC issued them to send a signal that the rule of law must be upheld.
Featured image: Benjamin Netanyahu (L), Yoav Gallant (C), Mohammed Deif (R). Featured Image Courtesy of EPA/Reuters.
