Understanding International Arrest Warrants: Implications for Israeli and Hamas Leaders
Seeking arrest warrants is a procedural step, not an immediate declaration of guilt, marking the beginning of a potential lengthy legal process.
The prosecutor at the International Criminal Court (ICC) is seeking arrest warrants for top Israeli and Hamas figures for war crimes and crimes against humanity related to the October 7 attacks on Israel and the subsequent war in Gaza. If approved, the warrants would be issued for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Warrants are also being sought for three top Hamas officials: Gaza leader Yahya Sinwar, political chief Ismail Haniyah, and Mohammed Diab Ibrahim al-Masri, also known as Mohammed Deif, the leader of Hamas’ armed wing.
Here’s what we know about the ICC cases and what they mean for Israel and Hamas.
How would an arrest warrant affect Netanyahu or Hamas leaders?
Seeking arrest warrants does not automatically indicate guilt. It is simply the initial step in a process that may result in a lengthy trial.
If the court determines there is enough evidence of wrongdoing, the suspect may be asked to appear voluntarily. Alternatively, the court may choose to issue an arrest warrant and rely on member countries to apprehend and transfer the suspect to the ICC.
If the suspect appears before the court, a pre-trial takes place in which the court decides if there is enough evidence for the case to go to trial.
Then there is a trial before three ICC judges, in which the prosecution must prove “beyond reasonable doubt” that the individual is guilty of the crimes.
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ICC is seeking arrest warrants against Sinwar and Netanyahu for war crimes related to the October 7 attack and Gaza war. If found guilty, the individual may face up to 30 years in prison. In rare cases, a life sentence may also be imposed by the court.
The ICC has issued arrest warrants against 42 individuals, with 21 of them being detained by member states.
According to former ICC president Chile Eboe-Osuji, Israeli officials would face a challenge if they were under an ICC arrest warrant. This is because the court's 124 member states would be legally required to arrest these officials if they visited any of those countries.
"He mentioned that it is important not to underestimate that obligation. For instance, Putin decided to skip the BRICS summit in South Africa last year, possibly due to Pretoria's responsibility to arrest him."
"Among the Hamas leaders wanted for arrest, Sinwar and Deif are believed to be in Gaza, while Haniyah is currently in Qatar, a country that has not signed the Rome Statute."
The ICC, headquartered in The Hague, Netherlands, was founded in 2002. It is responsible for prosecuting individuals for genocide, crimes against humanity, and war crimes.
The ICC is not a part of the United Nations like the ICJ and does not prosecute states. Despite being separate from the UN, it has the support of the UN's General Assembly and has a cooperation agreement with the UN. If a case falls outside the ICC's jurisdiction, the UN Security Council can refer it to the ICC, giving the ICC authority to handle the case.
International Criminal Court Prosecutor Karim Khan speaks during an interview with Reuters in The Hague, Netherlands, on October 12.
International Criminal Court Prosecutor Karim Khan speaks during an interview with Reuters in The Hague, Netherlands, on October 12.
Piroschka van de Wouw/Reuters
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Five countries have requested the International Criminal Court (ICC) to look into the situation in Palestinian territories. The ICC has the authority to investigate crimes that have allegedly been committed within the territory or by a citizen of any country that has agreed to the court's jurisdiction by signing the Rome Statute. Additionally, any member state has the right to ask the ICC's prosecutor to initiate an investigation.
The court has issued arrest warrants against high-ranking individuals in the past. This includes former Sudanese president Omar al-Bashir, Saif Gadhafi (son of the late Libyan leader Moammar Gadhafi), and most recently, Russian President Vladimir Putin.
Signatory states are required to arrest those with warrants, but leaders have tried to avoid capture, limiting their ability to travel freely.
The ICC does not have its own enforcement mechanism and has relied on countries’ support for arrests.
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ICC chief details charges he is seeking against Hamas and Israeli leaders
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Does the ICC have jurisdiction over Israeli nationals?
Five countries – South Africa, Bangladesh, Bolivia, Comoros, and Djibouti – referred Israel’s actions in Gaza to the ICC in November. They requested the court to investigate potential crimes like genocide, crimes against humanity, and war crimes in Palestinian territories. They also asked the court to decide if any individuals should face charges.
Even though Israel has not signed the Rome Statute, it does not exempt its citizens from being prosecuted by the ICC.
The court has been looking into potential crimes by Israel in Gaza, the occupied West Bank, and occupied East Jerusalem since 2014. The investigation started in March 2021, after being brought to the court by the Palestinian Authority. The ICC recognized the State of Palestine in 2015 and determined that it has jurisdiction over the conflict. It was decided that this jurisdiction covers Gaza, the West Bank, and East Jerusalem.
Israeli Prime Minister Benjamin Netanyahu addresses a conference in Jerusalem, on February 18.
Ronen Zvulun/Reuters/File
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Opinion: How an ICC arrest of Netanyahu could play out
ICC prosecutor Karim Khan stated that the investigation is still ongoing and includes the increase in hostilities and violence following the attacks on 7 October 2023.
Netanyahu expressed concerns about the ICC probe this month. He warned that issuing arrest warrants for Israeli officials would negatively impact international law and justice. Netanyahu emphasized that the ICC was established in response to the Holocaust and should not interfere with Israel's right to self-defense.
The ICC action is happening while a separate case is being considered by the International Court of Justice (ICJ) in The Hague. South Africa has brought a case against Israel, accusing them of committing genocide against Palestinians in the Gaza Strip. Israel acknowledges the ICJ.
The conflict in Gaza started after a Hamas attack on October 7, which resulted in the death of 1,200 people in Israel and over 250 others being taken hostage. This war has been ongoing for almost eight months.
According to Palestinian authorities, over 35,000 people have lost their lives in Israel's attack on Gaza. Large areas of the region have been destroyed, forcing over half of its 2.3 million residents to flee their homes. Famine has become a serious issue in certain areas of Gaza.
Now, the question arises: Does the ICC have authority over Hamas?
Palestinian leaders joined the Rome Statute in 2015, giving the International Criminal Court (ICC) authority over individuals in Gaza and other Palestinian regions. This means that the ICC also has jurisdiction over entities in those areas, such as Hamas.
ICC prosecutor Khan stated in October that the court has the authority to investigate alleged crimes carried out by Israel in Gaza or by Hamas in Israel, as reported by Reuters.
This means the court can indict Hamas leaders over possible crimes committed against both Israelis and Palestinians in the Gaza Strip.
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Shelly Aviv Yeini, who heads the international law department at the Israeli Hostage and Missing Families Forum, mentioned that the ICC has the power to hold Hamas accountable for their crimes, even if Israel does not acknowledge the court's authority.
Yeini explained to CNN that despite not being a government entity, their NGO can still file a complaint against Hamas at the ICC on behalf of the families of hostages in Gaza. They can do this even if Israel does not recognize the jurisdiction of the court.
ICC prosecutor Khan announced on Monday that he is requesting warrants based on evidence reviewed by his office. He also expressed gratitude to the families of the hostages for their bravery in sharing their stories.
Under Article 15 of the ICC Rome Statue, any person, group, or entity has the right to report suspected crimes to the court.
Going to the ICC was called "a mistake" by Muhammad Nazzal, a member of the Hamas political bureau, in a statement to CNN in February. He believed that this action would hinder negotiations to bring back the hostages.
According to Nazzal, the best way to secure the release of the prisoners is to continue with the current negotiation process. He shared this perspective with CNN during the same interview.
Editor's P/S:
The ICC's pursuit of arrest warrants for Israeli and Hamas leaders over war crimes and crimes against humanity is a significant development in the ongoing conflict. It underscores the international community's growing concern over the escalating violence and the need for accountability. The court's jurisdiction extends to individuals in Gaza and other Palestinian territories, including Hamas leaders, allowing it to investigate and prosecute alleged crimes committed against both Israelis and Palestinians.
While the issuance of arrest warrants does not guarantee guilt, it represents a serious step in the judicial process. If approved, it would place significant pressure on the suspects and could have far-reaching implications for their freedom of movement and ability to engage in diplomacy. The court's authority and the obligation of member states to apprehend suspects could potentially limit the travel options of Israeli and Hamas officials and raise the stakes in future negotiations. The outcome of this case will undoubtedly impact the dynamics of the conflict and set precedents for future international justice efforts.
