ICC issues arrest warrants for Netanyahu, Gallant and Deif

The International Criminal Court issued arrest warrants for Israel’s prime minister and former defence minister, as well as the Hamas military commander Mohammed Deif (who Israel says is dead) on Thursday. This means the ICC’s 124 members would have to comply with the arrest warrants if Netanyahu or Gallant set foot in their jurisdiction.

The warrants were issued on the grounds the three men bear “criminal responsibility” for alleged war crimes and crimes against humanity committed during the war in Gaza. The US and Israel (who are not ICC members) strongly rejected the court’s decision, while several European countries announced they would uphold the ruling.

There have been previous examples of ICC members failing to uphold their obligations, as the international court has no enforcement mechanism.

• South Africa and Jordan failed to arrest Omar Hassan al-Bashir when the Sudanese autocrat visited them, a move that was condemned by the ICC and human rights groups.
• In September, Russian President visited Mongolia, an ICC member, despite calls for Ulaanbaatar to hand over the Moscow leader. When Mongolia did not, the ICC ruled unanimously that Mongolia had violated the Rome Statue for failing to oblige the court’s request to arrest and surrender Putin.
  

The warrants were issued upon the request of the ICC’s prosecutor Karim Khan KC, filed last May.

Here’s what we wrote about his request then.

Karim Khan KC, the chief prosecutor of the International Criminal Court (ICC) in The Hague, has filed applications for arrest warrants for top Hamas and Israeli leaders involved in the October 7 attacks and the subsequent war in Gaza.

Who are the requested warrants for?

1. The prime minister of Israel, Benjamin Netanyahu
2. The defence minister of Israel, Yoav Gallant
3. The head of Hamas in Gaza, Yahya Sinwar
4. The head of the Hamas military wing (also in Gaza), Mohammed Diab Ibrahim Al-Masri (aka Mohammed Deif), and
5. The Qatar-based political leader of Hamas, Ismail Haniyeh.

What are the allegations?

The ICC’s chief prosecutor has found there are “reasonable grounds to believe” the Hamas leaders are responsible forvarious crimes from at least October 7, including “extermination”, “taking hostages”, “sexual violence”, and “torture”.

Meanwhile, Khan accuses Israel’s leaders of crimes from at least October 8, including “starvation of civilians”, “wilfully causing great suffering”, “extermination and/or murder”, and “intentionally directing attacks against a civilian population”.

What’s next?

The three judges of the ICC’s Pre-Trial Chamber I now decide whether to approve the warrants – that’ll take weeks or months as they weigh up Khan’s evidence.

But ICC judges rarely deny these kinds of warrant applications, so there’s a fair chance they’ll approve the prosecutor’s request, at which point the ICC would issue formal arrest warrants. The question then becomes around enforcement.

If the above individuals then enter any of the 124 states that recognise the ICC, those governments would have an obligation to detain and hand them over to the ICC.

• That list of 124 ICC members includes traditional friends of Israel like Australia, Germany, and the UK but not (for example) the US.
• The ICC list also includes the State of Palestine (signed by the Palestinian Authority in the West Bank) and neighbouring Jordan, but not Iran (the Hamas sponsor), Qatar (the host of its political wing), nor China or Russia (who’ve hosted recent Hamas delegations).

So in practice, it’s unlikely we’ll see these warrants executed, though they’ll still curtail the individuals’ freedom of movement, particularly Netanyahu and Gallant.

Of course, none of this is a surprise – Israel “became aware” of the ICC’s move last month (“became aware” often means “our intelligence found out”). Plus Khan himself says he publicly and repeatedly warned this day would come. And the ICC first opened an investigation into the Israeli-Palestinian conflict back in 2021.

But surprise or not, it’s still explosive.Hamashas “strongly denounced” the warrant requests for “Palestinian resistance leaders”, saying they equate “the victim with the executioner”. Iran, Qatar, Russia, and China haven’t commented at time of writing.

As for Israel, Netanyahu has described the ICC’s move as a “moral outrage”, President Biden has also called it “outrageous”, and the US Secretary of State has queried whether the ICC has upheld its own principles of “complementarity” (ie, the notion that the ICC should only step in when locals can’t or won’t).

But interestingly, Khan seems to have expected this criticism, flagging the ICC only steps back when local processes “do not shield suspects and are not a sham”.

Khan also acknowledges Israel’s right to self-defence and cites its aims to defeat Hamas and release the hostages, but argues “the means Israel chose to achieve them in Gaza… are criminal.”

INTRIGUE’S TAKE

One concept doing a lot of heavy lifting in the past 24 hours is “equivalence”:

• Hamas rejects any equivalence between its “resistance leaders” and Israel’s “occupation leaders”
• Israel rejects any equivalence between a “genocidal terrorist group” and the elected leaders of the state it’s trying to eradicate, while
• Khan seeks to zoom out, saying he must “apply the law equally” and that “the lives of all human beings have equal value”.

Another concept now in high rotation is “legitimacy”:

• Hamas has appealed to international law when convenient and rejected it when not (sometimes in the same statement)
• The West has also welcomed the ICC’s warrant against Putin, then partly condemned the court’s move against an ally like Israel, and
• The ICC has traded the risks to its own legitimacy from inaction, with the risks that now stem from action (ie, its warrants being ignored).

So what next? The politics of all this will ripple everywhere:

• The Palestinian Authority joined the ICC hoping to shine a light on Israel, but it’s also now shone a light on the difficulty of a two-state solution so long as Hamas leaders run Gaza but are wanted by the ICC
• This becomes even more of a wedge issue for Biden, who’ll face anger from the left for backing Israeli leaders under ICC scrutiny, and anger from the right for any distance between the US and Israel, and
• The ICC’s move against Netanyahu might benefit his rival Benny Gantz long-term, but it’ll unite Israelis around their government in the meantime. And that’s what Netanyahu needs to keep going in Gaza.

Also worth noting:

• France and Belgium have released statements backing the ICC.
• This ICC process is separate to the genocide case lodged by South Africa against Israel at the International Court of Justice (ICJ). The ICJ has jurisdiction over states (not individuals). 
• Khan’s statement doesn’t call for a ceasefire, though he does call for “the immediate release of all hostages taken from Israel”, and for “all parties in the current conflict to comply with the law now”.
• Khan, a British lawyer, was elected ICC chief prosecutor in 2021.