The ICC has requested arrest warrants for the leaders of Hamas and Israel, an historic development with major implications for international justice.

The application for arrest warrants by the Prosecutor of the International Criminal Court (ICC), Karim Khan KC, against leaders of Israel and Hamas, is a milestone for the Court and for international justice. Three of those named in the warrants, relating to the brutal attack by Hamas on 7 October 2023 are: Yahya Sinwar, the Hamas movement’s leader in Gaza; Mohammed Al-Masri (commonly known as Mohammed Deif), its military commander; and Ismail Haniyeh, its political head. The Israeli leaders’ warrants concern the country’s Prime Minister, Benjamin Netanyahu, and his Defence Minister, Yoav Gallant, and relate to the conduct by Israel of the subsequent war in Gaza.

The ICC, based in The Hague, has previously been criticised for concentrating its efforts on certain regions of the world. As Khan has noted, a senior leader (of an unnamed country) told him the Court was built ‘for Africa and for thugs like Putin’. But now the ICC is turning its attention to a different region and an ongoing conflict which for decades has had significant repercussions throughout the Middle East (where few countries are States Parties to the ICC) and elsewhere.

Both parties to the conflict have strongly criticised the arrest warrant applications. Israeli Defence Minister Gallant, condemned them as a ‘disgraceful’ attempt to interfere in the war and Netanyahu said it was a ‘moral outrage of historic proportions’ to seek arrest warrants against ‘the democratically elected leaders of Israel’. Hamas has only made a brief public statement, which attempts to portray the application for warrants as an attack on a legitimate Palestinian nationalist movement: ‘Hamas 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’.

Khan has applied for warrants on multiple, but distinct, charges of war crimes and crimes against humanity. Anne Ramberg, Co-Chair of the IBA's Human Rights Institute Council notes: ‘It is important to recognise that the crimes committed by Israel, for which the arrest warrant is sought are very different from those committed by Hamas’. The Hamas warrants have created relatively minor international ripples thus far, but the Israeli warrants have generated much public controversy and opposition. For the first time, the ICC is considering issuing an arrest warrant for the sitting head of government of a democratic state and Western ally: Israel.

Khan says that everyone, whether democratically elected or not, should be equally accountable if found to have violated international law: ‘nobody has a free pass to say the law doesn't apply to us’. Toby Cadman, Member of the IBA’s War Crimes Committee Advisory Board, feels the application concerning Israeli leaders was unavoidable: ‘In my view, it’s more a question of how our concepts of justice and accountability could survive if warrants were not issued and the Israeli political and military leadership were not to face the consequences where there is overwhelming evidence of atrocity crimes being committed and an entrenched culture of impunity’. 

The Israeli warrants present a far greater challenge for the Court than any it has faced to date. How the Prosecutor and the Court meet that challenge, both legally and politically, will have significant ramifications for international justice. It is a unique challenge, differing in some important respects from the challenge that the Court faces in dealing with Hamas, such as assigning command responsibility within the Hamas leadership and proving intent to commit atrocities on 7 October.

The Israeli warrants: supporters, detractors and fence sitters

The day that Khan announced an application for arrest warrants against the Israeli and Hamas leaders, he was interviewed by CNN’s Christiane Amanpour. Khan emphasised the neutrality of his approach: to consider the evidence, the conduct of the parties and the effects on victims, and to ‘airbrush out the nationality’. During the interview, Amanpour mentioned a letter, signed by 12 Republican members of the United States Congress, which threatened ICC staff and their families with travel bans and sanctions should they pursue the Israeli warrants. The letter ended with the words ‘you have been warned’. When Amanpour asked ‘is that a threat?’ Khan replied ‘I think that’s the plain meaning of it in English’.

In addition, former Russian President Dmitry Medvedev threatened to blow up the ICC with a hypersonic missile. Less overtly, the Israeli intelligence agency Mossad had been attempting for years to pressure former ICC Prosecutor Fatou Bensouda to drop investigations into Israeli military conduct in the Occupied Palestinian Territories (OPT) according to an investigation by UK newspaper The Guardian (conducted jointly with Israeli-Palestinian publication +972 Magazine and Local Call, a Hebrew-language news site).

International reaction to Khan’s application for warrants against the Israeli leaders has been mixed, ranging from outright condemnation to pro forma affirmations of support for the independence of the Court. The Prosecutor’s decision to announce applications for warrants against Hamas and Israeli leaders at the same time also led to expressions of outrage in some quarters over alleged ‘moral equivalency’. But it is difficult to see how the prosecutor could have done otherwise if he wishes to ‘airbrush out the nationality’; and, as Ramberg points out, ‘there is no question of moral equivalency as they are two separate issues. It was necessary to release the announcement simultaneously to deter backlash from either side of the conflict’.

The response to the application of the Hamas warrants has generated limited public reaction. It seems indisputable that these warrants would be enforced in Western countries if issued, particularly as Hamas’ actions on 7 October have been widely condemned and Hamas has already been designated a terrorist organisation by a number of countries (including Israel and the United States), and by the EU.

Countries have also begun to confront the issue of whether they would enforce the warrants against Israeli leaders on their territory, with France stating that it would implement any such arrest warrants if issued, along with Norway and even Israeli ally, Germany. Presumably this will now be the UK government’s position, given it was announced by the Labour Party before it won the recent election.

The court has many 'friends'

The outgoing UK government questioned the jurisdiction of the ICC in an amicus curiae (‘friend of the court’) application, which the Court’s Pre-Trial Chamber (PTC) allowed to proceed on 27 June. The essence of the UK intervention was that because Palestine has no criminal jurisdiction over Israeli citizens under the 1993 Oslo Accords (which marked the start of a now-stalled peace process between Israel and the Palestinians), it cannot delegate its jurisdiction to the ICC. 

Danya Chaikel, Co-Chair of the IBA War Crimes Committee and the representative of the International Federation for Human Rights to the ICC, says that the UK application was unfounded and disingenuous. ‘The UK’s attempt to challenge ICC jurisdiction using the Oslo Accords is deeply troubling and unjust [...] Prioritizing diplomatic relationships over accountability for international crimes, it also fails to address Israel’s noncompliance with the Oslo Accords.’ 

The ostensibly political nature of the application was underlined by a change of UK government, which raised the question of whether the incoming administration would pursue it. The new UK Foreign Secretary, David Lammy, told Reuters: ‘We are very, very clear on the importance of the rule of law and importance of international humanitarian law [...] The issue of arrest warrants is a matter for the ICC prosecutor’. The position was finally resolved on 26 July, the day the UK amicus brief was due, when the UK government announced publicly that it would not be pursuing the intervention, stating that ‘this is a matter for the court to decide on’.

At the same time as the PTC allowed the UK’s application, it opened the door to other amicus curiae interventions, commenting that its decision ‘must not be understood as an open call by the Chamber for amicus curiae submissions’. This looks, in retrospect, to have been overly optimistic: more than 60 interventions have now been allowed by the Court, a situation described as ‘unprecedented’ by criminal justice professor Mark Kersten, from the University of the Fraser Valley in Canada. These include applications from individual legislators, lawyers and academics from several countries; Israeli, Palestinian and international non-governmental organisations; and states, including the US. The details of the various interventions remain confidential. 

The purpose of amicus curiae applications is to help inform the Court and to offer expertise not otherwise available to it. Kersten appreciates the Court's desire to hear from ‘a diversity of voices’ but wonders whether assisting the Court is the aim of all applications. ‘Some will be strong arguments that may indeed improve the quality of the PTC’s decision on warrants’, he says. ‘Others, however, will be political calls for impunity masquerading as legal opinions.’

The Chamber will doubtless be wary of any politically-motivated amicus applications that may be designed to impede proceedings. Nevertheless, the volume of applications received will probably provide an additional challenge to the Court’s stated aim to ‘limit the impact of this procedure on the expeditiousness of the present stage of the proceedings’. Kersten predicts there will inevitably be consequences. ‘This many interventions can only have the effect of delaying the PTC’s decision, and that is a tough pill to swallow for those who have vested their faith in the ICC acting expeditiously to further justice and accountability’, he says.

Law in a political context

While it must ensure that its decisions are driven by the law, the ICC operates within the turbulent world of international politics and consequently its actions will inevitably attract opposition and criticism, if not open hostility, from some quarters. Ramberg thus sees this latest action by Khan regarding the Israel–Gaza conflict as bolstering the Court’s image: ‘There has been significant negative sentiment towards the ICC for some years related to the belief that only African states are at the receiving end of ICC prosecution. This is a positive move for the ICC and development of international justice as it demonstrates the court will investigate and prosecute any state committing war crimes against a State Party’.

Although in the past the ICC has dipped a toe in waters closer to Western interests, the results have been mixed. Khan’s predecessor, Fatou Bensouda, did not get beyond a preliminary investigation of the conduct of the UK military in Iraq, closing it down in December 2020 citing concerns it would not pass the admissibility test as the UK was investigating the allegations itself. Even more politically controversial was the investigation of the ICC into the conduct of the US military in Afghanistan, which led to sanctions being imposed on ICC staff by President Trump. At one stage, the PTC denied Bensouda permission to investigate (though this was overturned on appeal) on the grounds that it was not in the interests of justice, citing a lack of cooperation (presumably by the US) which would ‘make such investigation not feasible and inevitably doomed to failure’.

Khan, who was appointed as Prosecutor in February 2021, decided to shut down the part of the Afghanistan investigation relating to the US and Afghani army in September of the same year. This was seen as a failure of neutrality by some, but equally it could be argued that it demonstrated a pragmatic approach to the use of Court resources when balanced against the likelihood of a successful outcome. In fact Khan has added an additional criterion beyond the standard of the Rome Statute that there are ‘reasonable grounds to believe’ that crimes have been committed. In order for his office to pursue prosecution, there must also be ‘a realistic prospect of conviction’.

The PTC has highlighted the inherently political impact of many of the Court’s decisions in delivering its ruling on the Court’s territorial jurisdiction in Palestine in 2021, when it noted that the ‘very nature of the core crimes under the Rome Statute, the facts and situations that are brought before the Court arise from controversial contexts where political issues are sensitive and latent. Accordingly, the judiciary cannot retreat when it is confronted with facts which might have arisen from political situations and/or disputes, but which also trigger legal and juridical issues.’

The Israel–Palestine conflict is one of the most politically divisive and emotive to be dealt with by the Court. The brutal Hamas attack of 7 October 2023 and the subsequent overwhelming devastation caused in Gaza by the Israeli army, resulting in a massive civilian death toll and a humanitarian crisis, have polarised voices on both sides. As Cadman remarks: ‘the Situation in the OPT is a politically charged environment, more than any other, that divides opinion and places greater challenges on the Office of the Prosecutor to conduct independent and impartial investigations.’

In any case, ICC procedures do not grant Khan unfettered decision-making. Although the Prosecutor has some discretion over which countries he decides to investigate, the process is often driven by either UN Security Council or State Party referrals. The Court’s rules permit numerous challenges and appeals at various stages of the proceedings, as evidenced by the recent UK challenge to the Court’s jurisdiction, and the judges have extensive oversight of the entire process. They must agree to the issuing of arrest warrants. They are also obliged to hold a ‘confirmation of charges’ hearing which involves an additional check that the Prosecutor has ‘sufficient evidence to establish substantial grounds to believe’ that the accused committed the alleged acts before charges are approved for trial and has led to charges being dismissed by the judges in the past.

‘If states step up, I’ll step out’

Because the ICC only has limited resources, it pursues those who bear the most responsibility for war crimes, often likely to be high-ranking individuals, and then only if there is no other recourse. In particular, the ICC will refrain from taking action in order to allow national proceedings to prevail wherever possible. This is known as the concept of ‘complementarity’, which is addressed in the Rome Statute. Khan has emphasised his preference for national proceedings wherever these are effective, saying: ‘if states step up, I’ll step out [...] it doesn’t matter which flag is behind the judges – the ICC flag or a national flag’. 

The existence of an independent judicial system in Israel has been advanced by some as an argument that the ICC is over-stretching in this instance. However, this is an over-simplification since a State Party must not only be able to act (that is, possess a functioning legal system), but it must also be willing to act. Under Article 17 of the Rome Statute, the ICC should only have jurisdiction when a State Party is ‘unwilling or unable genuinely to carry out the investigation or prosecution’. The ICC Prosecutor’s investigation into Israel’s conduct in the OPT was first authorised by the Court in 2021. At that stage, the Prosecutor was obliged to formally notify Israel of the investigation, giving it an early option to assert that it was investigating individuals, who may have committed crimes under the Rome Statute, related to the Prosecutor’s information. Israel did not choose to exercise the right at that time.

Hebrew University Public International law professor, Yuval Shany, thinks the Prosecutor should have issued a new notification of investigation after the events of 7 October 2023, arguing that ‘the Israeli legal system was not given a genuine chance to start an investigation regarding the current Gaza war before arrest warrants were requested’. However, Kersten underlines that it is still possible for Israel to challenge the Prosecutor’s interpretation that investigating the current Gaza conflict is a continuation of the ICC investigation into Israel’s conduct in the OPT, which was authorised in 2021. ‘If Israel wants to make a complementarity challenge at the Court, it may do so at any time. I think that would be very welcome at the ICC’, he says.

In any event, a complementarity challenge can also be brought (by Israel or the suspects named in the ICC warrants) under another provision of the Rome Statute if Israel can show it is investigating the same person for substantially the same conduct as is alleged in the ICC warrants. Ultimately, the provisions of the Rome Statute, that govern complementarity, require proof that active and genuine investigations are ongoing. Ramberg thinks there is nothing to support the view that this is happening: ‘The principle of complementarity allows a state to internally investigate and prosecute. However, there must be evidence that these mechanisms are being utilised. This was not the case for Israel and resultantly, the ICC prosecutor had to act’. Global Insight contacted Israel’s government and its legal department and they declined to comment.

Ultimately, the greatest challenge for the Court comes when its actions bring it into conflict with the interests of powerful global political forces – particularly, in this case, the US and its support for Israel. As Khan says: ‘These events challenge leaders. What do they put first: individual interest, political aspirations, dogma, ideology or the interests of humanity and their own people’?

Unlike most countries that have been the focus of ICC attention, Israel is a Western-style democracy with an effective and independent legal system. It would therefore seem a missed opportunity for Israel to fail to demonstrate that no-one is above the law. As its Attorney General, Gali Baharav-Miara, has said: ‘we do not shy away from enforcing the law against any person, even the heads of the military and the state, if there are well-founded suspicions of violations of the law'. Indeed, Netanyahu is currently being prosecuted for corruption in the Israeli courts. The question is whether Israel has the will to investigate international crimes, such as those alleged by the ICC Prosecutor. As Kersten notes, there is ‘hope that changes and real accountability is possible in the country’s domestic legal system’.

Anne McMillan is a freelance journalist and can be contacted at solon.law@proton.me