The international criminal court’s chief prosecutor, Karim Khan, has announced he will apply to the court for arrest warrants for Benjamin Netanyahu, Israel’s prime minister, as well the country’s defence minister, Yoav Gallant. At the same time, Khan is seeking warrants for the leader of Hamas, Yahya Sinwar, the head of its military wing, Mohammed al-Masri (better known as Mohammed Deif), and the head of its political bureau, Ismail Haniyeh.
The charges he is pursuing against Netanyahu and Gallant concern the conduct of the war in Gaza, include the use of “starvation of civilians as a method of warfare”, “intentionally directing attacks against a civilian population as a war crime”, extermination as a crime against humanity, and murder as a war crime.
The proposed charges against the Hamas leadership focus on the 7 October attack on southern Israel, which started the current war. They include “extermination as a crime against humanity”, “taking hostages as a war crime”, “rape and other acts of sexual violence as crimes against humanity”, and “torture as a crime against humanity”.
Will arrest warrants now be issued against Netanyahu, Sinwar and the others?
Not necessarily. The application for warrants now goes to one of the pre-trial chambers in the ICC, and will be decided on by a panel of three judges. At the moment, the chamber involved is made up of judges, from Romania, Benin and Mexico. It is not a foregone conclusion that they will approve all Khan’s requests, but legal scholars point out that the threshold of evidence for a warrant is just “reasonable grounds to believe”, rather than “beyond a reasonable doubt”, which is the standard for conviction at trial.
Iva Vukušić, an expert on international legal institutions at the Utrecht University, in the Netherlands, said: “The prosecution is not dumb; they would not mess up at this stage at such an important case everyone is looking at. So I believe the judges will agree on the warrants.”
However, a huge amount of global political pressure is likely to descend on those three judges in the days to come.
If arrest warrants are issued, what will that mean for those charged?
The ICC does not have its own police force or enforcement mechanism, but the warrants would seriously limit the travel options of the indictees. The 124 state members of the ICC would be under obligation to arrest them, and even non-members would come under pressure to carry out an arrest.
In practice, powerful non-members such as the US, Russia and China, would shrug off such pressure. Netanyahu and Gallant, for example, would still be able to visit America. Sinwar and Deif are believed to be in Gaza so beyond reach for the time being. Haniyeh is based in Qatar, which is not a member of the ICC.
Are any more warrants expected from the ICC prosecutor?
In his statement on Monday, Khan made clear there could be more to come. His office is continuing its investigations, along a range of fronts. In particular, he mentioned the allegations of sexual violence committed in the 7 October Hamas attacks, and “the large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza”.
Khan said his office “will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met”.
What is the difference between the ICC and the ICJ?
The ICC prosecutes and tries individuals on war crimes charges. The international court of justice considers the legal responsibility of nations. For example, South Africa has brought a case against Israel in the ICJ under the genocide convention.
What is the political significance of the warrants?
If these warrants are issued by the ICC, it will be one of the most consequential moments in its history since it was established in 2002, because it is the first time it will have sought to hold a close ally of the west, and of the US in particular, to account. The ICC has been widely criticised in the global south for focusing its attention too much on African countries with little global clout. Khan’s application is in direct defiance of Washington, which had lobbied him heavily not to proceed.
In his statement, Khan made a point of saying that the principle of equality before the law was at stake. “Today we once again underline that international law and the laws of armed conflict apply to all,” he said.
In seeking to shield Israel, the US frequently points to its well-established judiciary and system of military justice. Khan suggested heavily in his statement that those institutions actually “shield suspects” and are a “sham”.
What is the likely international response to warrants being issued?
Israel and its supporters will react furiously. Most consequentially, the US Republican party will pursue sanctions against members of the ICC. Such sanctions were imposed by the Trump administration, and a group of a dozen Republican senators wrote a letter to Khan earlier this month warning his office: “Target Israel and we will target you.”
