ICC seeks arrest warrants for Benjamin Netanyahu, Yahya Sinwar and other Israeli and Hamas leaders – but unlikely to result in speedy justice

The chief prosecutor of the International Criminal Court has requested that the court’s judges issue arrest warrants for Israeli and Hamas leaders, following the October 7, 2023 Hamas attacks on Israeli civilians and subsequent siege from Gaza by Israel.

Karim AA Khan, the chief prosecutor of the International Criminal Court, often known as the ICC, said in a statement that he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Israel’s minister of justice. Defense, Yoav Gallant – as well as against the leaders of Hamas, Yahya. Sinwar, Muhammad Deif and Ismail Haniyeh. Khan said Israeli and Hamas leaders “bear criminal responsibility” for “war crimes and crimes against humanity,” which he detailed in the statement.

The ICC’s allegations against Hamas include extermination, murder, hostage-taking and the commission of rape and other acts of sexual violence. And the ICC’s allegations against the two Israeli leaders include starving Palestinians in Gaza, “intentionally directed attacks against a civilian population,” as well as persecution and “intentional killings.”

The ICC, an independent court based in The Hague, Netherlands, prosecutes genocide, crimes against humanity and war crimes – the latter being a legal term that includes attacks on civilians and the commission of other wartime violations, such as blocking humanitarian aid.

Khan had announced an investigation in November 2023 to examine Hamas and Israeli suspects following the Hamas attack in Israel that killed 1,200 people and kidnapped hundreds more, and the Israeli war that followed in Gaza, which has so far killed more than 34,000 Palestinians.

The ICC criminal investigation follows the high-profile genocide case that South Africa brought against Israel in December 2023 at another international tribunal called the International Court of Justice.

But these investigations and tribunals are separate. While the ICC can try individuals allegedly responsible for criminal violations of international humanitarian law, the International Court of Justice is part of the United Nations that adjudicates civil disputes and cannot charge individuals with crimes.

As a scholar of human rights and international courts, I think it is important to emphasize that the ICC and other contemporary international criminal tribunals do not have coercive powers of their own. This means that in the Israel-Hamas situation, the ICC may never be able to arrest suspects or bring them to justice.

These international tribunals therefore have a mixed record when it comes to holding senior political and military leaders accountable for their crimes. Only if and when political leaders fall from power is there a chance that their governments will arrest them and hand them over to international courts for prosecution.

Silhouettes of people are seen walking down a street that has many destroyed buildings and rubble on the ground.
Palestinians walk among the rubble of destroyed buildings in Nuseirat, Gaza, April 29, 2024.
AFP via Getty Images

The challenge for international courts

Take the example of Russian President Vladimir Putin, who since March 2023 has defied an ICC arrest warrant for allegedly committing war crimes during the war in Ukraine. As long as Putin remains in power, there is virtually no prospect of his arrest.

International criminal courts like the ICC face a dual problem. First, these courts do not have a real international police force to make arrests.

Second, governments implicated in their leaders’ alleged crimes often attempt to obstruct international tribunals by failing to hand over suspects and seeking to attack the tribunals as biased.

The problem of law enforcement, as my studies have shown, can allow the leaders of a powerful country like Israel or an entity like Hamas to evade arrest warrants from international courts – as long as suspects remain in their country or territory.

In this situation, Israel is not a party to the ICC, meaning that it has never agreed to comply with its rulings or arrest warrants and does not otherwise accept the jurisdiction of the Court. The United States and other countries, including Qatar, where at least one of the Hamas leaders named in Khan’s arrest request lives, are also not members of the ICC and are not legally bound to make arrests.

If the ICC pre-trial chamber approves Khan’s request for arrest warrants against Netanyahu and Gallant, they could travel to meet with U.S. leaders in Washington, D.C., without fear of arrest. But they will now likely avoid traveling to European Union countries, all of which are part of the ICC and would be obligated to arrest Netanyahu.

All of this could also contribute to increasing Israel’s international isolation and putting pressure on its wartime conduct.

Issuing arrest warrants against Hamas leaders also threatens to stigmatize Hamas internationally.

The United States, which has at times strongly opposed the ICC but also supported the court on an ad hoc basis, as happened in the case of the Ukraine war, has warned that issuing arrest warrants arrest against Israeli leaders could jeopardize a possible ceasefire agreement. between Israel and Hamas.

Milosevic’s fall from power

Not all arrest warrants fail.

The trial of Serbian leader Slobodan Milosevic in the mid-2000s illustrates how international courts might be able to prosecute suspected war criminals once they lose power.

In 1993, while the war in Bosnia was still ongoing, the United Nations Security Council established a special tribunal, called the International Criminal Tribunal for the Former Yugoslavia, to try crimes committed during the regional wars.

This court indicted Serbian nationalist leader Slobodan Milosevic for war crimes and crimes against humanity in 1999 during the ongoing war in Kosovo. Milosevic’s alleged crimes in Kosovo included a massive campaign of ethnic cleansing against Kosovo Albanians, the region’s largest ethnic group. Milosevic later faced additional charges for alleged crimes in Bosnia and Croatia.

But Milosevic was still in power when the indictment was issued, and his government protected him from arrest. Milosevic lost the presidential election in late September 2000 and, after much protest, resigned.

The United States has promised Serbia’s new democratic government substantial economic aid to speed its postwar recovery. This prompted the Serbian government to arrest Milosevic and then transfer him to the international tribunal in June 2001.

People hold speakers and stand in front of a black and white photo of a very serious-looking man.
Relatives and supporters of hostages held by Palestinian militants in Gaza chant during a demonstration calling for their release on April 27, 2024.
Jack Guez/AFP via Getty Images

A potential playbook for Israeli and Hamas leaders

Milosevic’s trial began in February 2002, but he died in prison in 2006, shortly before his trial ended.

His trial further shows that, in specific circumstances, international courts can overcome their lack of coercive powers and bring high-ranking suspects to justice. International political pressures and incentives often play a key role in this process.

As long as political and military leaders subject to arrest remain in power, it is likely that no amount of political pressure or promises will persuade Israel, Qatar or other countries to cooperate with an international tribunal and hand over their leaders. they are indicted. .

And history also shows that even if Hamas leaders are overthrown or Israeli leaders lose the elections, there is no guarantee that potential suspects will ever be tried by the ICC.

There is widespread public opposition to the ICC in Israel, with politicians across the political spectrum condemning the request for Khan’s arrest warrants.

Despite the fact that Khan also seeks to prosecute Hamas leaders, Israeli politicians have reacted with outrage to the ICC’s demands for arrest.** Moreover, at least in the short term, it is highly unlikely that the United States will United is exerting this type of pressure against its close ally, Israel, that it successfully demanded from Serbia the arrest of Milosevic after his fall from power.

This story has been updated from an article originally published on June 22, 2022.