Potential Warrants from the ICC: What it Means and Reactions

Earlier on May 20th, International Criminal Court (ICC) prosecutor, Karim Khan, stated that he was filing an application for arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli Minister of Defence Yoav Gallant, head of the Hamas political bureau Ismail Haniyeh, head of Hamas in Gaza Yahya Sinwar, and Mohammed Diab Ibrahim Al-Masri, the commander in chief of Hamas’ military wing, the Al-Qassam Brigades.

The application does not mean for certain that a warrant will be issued, the final decision on this matter lies with a panel of ICC judges.

But what does this all mean..? And what have Israel, Hamas, and their respective allies said on the matter..?

Crimes Alleged

Prosecutor Khan gave several crimes that his team was accusing both parties of. All of the crimes are according to the Rome Statute, which the ICC is based upon. The statement concerning both Israel and Hamas reads below:


Israel:

“I have reasonable grounds to believe that Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defense of Israel, bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023:

  • Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
  • Willfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
  • Willful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
  • Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
  • Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
  • Persecution as a crime against humanity contrary to article 7(1)(h);
  • Other inhumane acts as crimes against humanity contrary to article 7(1)(k).”

Hamas:

“On the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Yahya SINWAR (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail HANIYEH (Head of Hamas Political Bureau) bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023:

  • Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;
  • Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);
  • Taking hostages as a war crime, contrary to article 8(2)(c)(iii);
  • Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;
  • Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;
  • Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;
  • Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and
  • Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.”

As previously mentioned, the final decision on whether or not to issue an arrest warrant lies with a panel of ICC judges. Khan further added that “should they grant my applications and issue the requested warrants, I will then work closely with the Registrar in all efforts to apprehend the named individuals.”

The dates given, of course, correspond to the beginning of the present war between Israel and Hamas, which began with Hamas’ attack upon Israel.


Israeli Artillery fires towards Gaza, December 14th, 2023 (Photo from AP Photo/Leo Correa, File).

The warrant application comes after reports surfaced at the end of April that the ICC was considering filing such an application based upon a three year long investigation, beginning in 2021, into both Israeli officials and Gaza militants over alleged war crimes committed “since 13 June 2014.” In 2014 was the 2014 Gaza War, known as Operation Protective Edge by Israel. This three year investigation followed a five year long “preliminary examination” by former ICC prosecutor Fatou Bensouda. Bensouda concluded that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip,” however no arrest warrants were ever issued for neither Israeli nor Hamas officials.

A summary from the ICC on that preliminary examination may be read here.

Khan stated the evidence for these crimes comes from “interviews with survivors, many eye witnesses, experts, from satellite imagery, statements from Israeli officials; including the two individuals subject to the present application, as well as based upon several hundred authenticated videos, photographs, and audio recordings, many of which were taken and shared by eye witnesses and victims themselves.”

He further spoke of the “complete siege” Israel had laid upon Gaza, including through the cutting of water and electricity supplies to Gaza. Prior to the war, a significant portion of Gaza’s water and power infrastructure was in Israel, outside of Gaza. Shortly after the war began, a number of these services were cut. Some of these services remain turned off.

What Does it Mean..?

An arrest warrant from the ICC means several things, both in a practical sense and in the sense of the ramifications for such a move.

Practically, it would immensely restrict the ability of Netanyahu, Gallant, and the three Hamas officials to travel internationally. All member states of the ICC are legally obligated to arrest any individual the ICC has issued a warrant for. This legal obligation is a core part of the Rome Statute.

Such a warrant was issued for Russian President Vladimir Putin in March of 2023 over actions Russia has taken in Ukraine. The existence of this warrant prevented Putin from travelling to South Africa for the BRICS summit that was held in August, as South Africa is a member state of the ICC, and would have had to of arrested him should he have stepped on South African soil.


Putin virtually attends the BRICS 2023 summit held in South Africa, August 23rd, 2023, after being unable to enter the country due to the ICC’s warrant (Photo from GIANLUIGI GUERCIA/Pool via REUTERS).

Neither Israel nor the US are signatories of the Rome Statute. Nor is Qatar, where Hamas political chief Ismail Haniyeh resides.

However, several key allies of Israel, such as the UK, Germany, and France, are signatories of the Rome Statute. As mentioned, this means if either Netanyahu or Gallant entered any of these nations, they would be obligated to arrest them. These nations are, of course, allies of Israel, but also oftentimes used as transit points for travel between Europe and North America, restricting Netanyahu and Gallant’s available paths to travel to the US.

Notably, the State of Palestine is an ICC member state, although the Palestinian political entity is already at odds with Hamas and their leadership, meaning there is no realistic change for the availability of travel for Hamas officials within Palestinian areas.

Beyond the sense of practicality, this is notably the first time that the ICC has sought a warrant against any prominent US ally, as well as the leader of a democratic nation. The ICC has issued many warrants before, however the warrants are typically issued against people such as Putin, Libya’s Gaddafi, or warlords from various nations that have been complicit in a number of crimes.

When announcing the application, Khan stated that “nobody is above the law,” and that “no foot soldier, no commander, no civilian leader, no one, act with impunity.” The potential issuance of arrest warrants shows that the ICC intends to maintain this belief.

Notably, Khan also affirmed Israel’s right to defend itself, and to return its hostages, but said that this must be done within the bounds of the law. Israel’s right to defend itself has been a repeat argument made by Israeli officials and lawyers in their justification for the war, particularly in its defence against South Africa’s accusations of genocide in the International Court of Justice.



Reactions to the Application

Israel, Hamas, and many of their respective allies have issued statements concerning the matter. Many of them welcoming the application for warrants of the opposing side, while condemning the application of warrants for them or their allies. But just what has each side said about the matter..?

Israel:

Several Israeli officials, including Netanyahu and Gallant themselves, have issues strong condemnations on the warrants issued against Israeli officials.

Netanyahu accused Khan of equating himself and Gallant with the “genocidal” leaders of Hamas. Other Israeli officials echoed this sentiment, including Benny Gantz, a member of Netanyahu’s War Cabinet.

“Drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror to leaders of a blood-thirsty terror organisation is a deep distortion of justice and blatant moral bankruptcy” -Benny Gantz

Netanyahu stated that the application puts Khan “among the ranks of the great antisemites of modern times,” and further went on to compare him to Nazi German judges who upheld antisemitic laws during the Nazi era.

Netanyahu also stated that “Mr. Khan’s abuse of this authority would turn the ICC into nothing more than a farce.”

Additionally, Netanyahu reiterated previous vows that any international decisions would not stop Israel from carrying out its “just war against Hamas.” This statement is particularly notable, as there are presently deliberations going on in the International Court of Justice (ICJ), which will potentially see a court order to halt the war. As a member of the UN, Israel would technically be bound by the ICJ’s decision. However, the ICJ has no enforcement mechanism, and a number of their rulings have been ignored in the past by various countries.



Netanyahu accurately pointed out that the ICC does not have jurisdiction over Israel, and thus Israel will not be bound by these decisions either, though the ICC’s decision is merely on whether or not to issue an arrest warrant, not to halt the war.

The United States:

Alongside Israel, the US has condemned the application. But further than this, US politicians have threatened to sanction the ICC and various ICC officials over the matter. US Representative Chip Roy has introduced a bill into the house that would see such sanctions come to fruition if it passes. The bill has seen support from a number of other representatives as well.

House Speaker Mike Johnson stated that the US Congress was “reviewing all options, including sanctions, to punish the ICC and ensure its leadership faces consequences if they proceed.”

The basis for support in this bill lies with Republican politicians, however several Democrat politicians have spoken out against the application.

US officials, including President Joe Biden, also echoed the sentiment that the application for both Hamas and Israel once again equated them.

“WE reject the ICC’s application for arrest warrants against Israeli leaders. Whatever these warrants may imply, there is no equivalence between Israel and Hamas… Contrary to allegations against Israel… What’s happening is not genocide” -US President Joe Biden



Some US politicians, namely Ilhan Omar alongside several other Democrats, have expressed support either for the application, or have stated the ICC should be allowed to function without US interference.

Hamas:

Hamas released a number of statements concerning the matter. Notably, they welcomed the application of warrants for Israeli officials, though they stated the application came “seven months late.”

They further expressed a similar sentiment to that of the Israeli and US officials, in which they claimed the application compared Hamas and Israeli officials to each other. Hamas stated they strongly denounced the “attempts of the Prosecutor of the International Criminal Court to equate the victim with the executioner,” and demanded the “cancellation of all arrest warrants issued against leaders of the Palestinian resistance.”

Their full statement may be read below:


“In the name of God, the most gracious, the most merciful

Press release about
The Public Prosecutor of the Criminal Court issued arrest and detention warrants against a number of Zionist occupation leaders

The Islamic Resistance Movement (Hamas) followed up on the arrest and detention warrants issued today by the Prosecutor of the International Criminal Court against only two war criminals of the Zionist entity. They are Benjamin Netanyahu and Yoav Gallant, who were proven involved in committing the crime of genocide, aggression and crimes against humanity against the Palestinian people.

The arrest and detention warrants against the aforementioned occupation leaders came seven months late, during which the Israeli occupation committed thousands of crimes against Palestinian civilians, including children, women, doctors, and journalists, and destroyed private and public property, mosques, churches, and hospitals.

The Public Prosecutor was required to issue arrest and detention orders against all officials from the occupation leaders who gave orders, and soldiers who participated in committing crimes in accordance with Articles 25, 27 and 28 of the Rome Statute, which emphasized the individual criminal responsibility of every official, commander, or any person who ordered, or instigated, committed, aided or assisted the commission of crimes, or failed to take measures to prevent the commission of crimes.

The Hamas movement strongly denounces the attempts of the Prosecutor of the International Criminal Court to equate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders, without a legal basis, in violation of the international conventions and resolutions that gave the Palestinian people and all the peoples of the world under occupation the right to resist the occupation in all forms. Including armed resistance, especially the United Nations Charter, as stipulated in Article 51.

Hamas demands the Prosecutor of the International Criminal Court to issue arrest and detention orders against all war criminals, including occupation leaders, officers and soldiers who participated in crimes against the Palestinian people. It also demands the cancellation of all arrest warrants issued against leaders of the Palestinian resistance, for violating UN conventions and resolutions.

Hamas Islamic Resistance Movement”


Many of the nations that the officials named in the applications are not a party to the Rome Statute. Furthermore, two of the officials, Sinwar and Al-Masri, are within Gaza itself. As such, it will be rather difficult to arrest these individuals. In the past, however, the ICC has arrested and tried a number of people of a similar calibre.

Other Nations of the World:

Many different nations have issued statements supporting or condemning the applications.

The French Foreign Ministry released a statement in which it affirmed its support for the ICC, and “its independence and the fight against impunity in every situation.” However, this statement was not a direct condemnation of any of the applications, nor a statement of support for them, just merely a statement of support for the ICC itself.

France’s statement also specifically condemned the October 7th “antisemitic massacres perpetrated by Hamas.”

France, a traditional Israeli ally, has grown rather critical of the war as time has gone on. In the UN Security Council, where France is a permanent member, France voted in favour of a ceasefire on several occasions.


Israeli Prime Minister Benjamin Netanyahu and President Emmanuel Macron meeting in Paris, 2018 (Photo from AFP/Ludovic Marin/File).

Norway became the first country to state that they would, in fact, arrest Netanyahu if he were to enter the nation.

Norway’s Foreign Minister, Espen Barth Eide, stated that Norway would be “obligated” to arrest him if he visited Norway, further adding that Norway expects that “all state parties to the ICC will do the same.”

Norway’s statement came as many were unsure if some nations would follow through on their legal obligation to perform the arrest under the potential threat of US sanctions.

Sébastien Gray
Sébastien Gray
Sébastien Gray is a published journalist and historicist with over 5 years experience in writing. His primary focus is on East and West African affairs.

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