The Israeli Prime Minister, Benjamin Netanyahu, could be sued by the International Criminal Court (ICC) alongside his defense minister and three Hamas leaders. Then what? The government in Tel Aviv has been watchful of events at The Hague, Netherlands where the ICC is based.
Karim Khan, a chief prosecutor with the court requested warrants of arrest for Yoav Gallant, Defense Minister and Prime Minister Benjamin Netanyahu. They are accused of committing war crimes as well as crimes against humanity in Gaza Strip.
For a similar offense involving an attack on Israel on October 7th by the Islamist militant group some warrants of arrest were also issued to Yahya Sinwar, Mohammed Deif and Ismael Haniyeh who are Hamas leaders.
What kind of charges will ICC bring against Netanyahu? It is only individuals that can be investigated by International Criminal Court when they have been suspected to have committed one among four core international crimes including: genocide, war crimes, crime against humanity or aggression crime.
In fact since 2021 ICC has been investigating Israel over these possible war acts. At the same time it has also been looking at Hamas fighters in relation to similar charges. Additionally there are still some investigations going on over incidences of violence carried out by Israeli settlers in West Bank. All this is being discussed while taking into account recent developments in the Israel-Hamas conflict.
This current violent flare-up began with an attack launched by militant Islamic fundamentalist Hamas fighters into Southern Israel killing about 1200 people and abducting more than 240 back to Gaza on October 7th 2023. The US and many EU member states consider Hamas a terrorist organization.
According to statistics from Gaza Health Ministry which is under Hamas control their military response has killed more than 34,000 people but it’s difficult to ascertain how true these figures are. When does the ICC have jurisdiction over Israeli citizens?
As matter of fact ICC can only establish jurisdiction when the national legal system of a state is unable or unwilling to deal with the relevant crimes. This war makes it even less likely than normal that Israeli courts would initiate criminal procedure against its head of government, ministers and army command. This is also subject to Israel not agreeing with such a court as the home country of a perpetrator. The country in which a crime is believed to have been committed must agree.
That could very well be the situation here since Palestinian territories are parties to the Rome Statute of the ICC. Together with Israel, these include US, China, Russia, India and most Arab countries and Iran.
In a situation where none of the nations involved in these crimes has ratified ICC treaty then responsibility for engaging ICC in investigation rests in hands of United Nations Security Council (for example: Libya and Sudan). What consequences could the ICC warrant have for Netanyahu?
An arrest warrant does not equate conviction; it only implies that there are some serious allegations leveled against an individual by ICC that needs investigation.
Based on the ICC’s website, judges may issue a warrant of arrest if it is believed that this would guarantee the presence of the accused at trial and ensure that he does not disrupt or jeopardize inquiry processes or court proceedings as well as to prevent further crimes being committed by him. However, since it lacks a police force to execute its warrants, it is highly unlikely that Israeli government officials will ever appear before The Hague’s judges.
However, an arrest warrant would seriously limit Netanyahu’s and his allies’ freedom of movement since each of the ICC Treaty’s one hundred twenty-four signatories are obliged to detain those against whom they have outstanding warrants and turn them in for trial.
As a result, Russian President Vladimir Putin has been forced to avoid traveling abroad for most international meetings since he was indicted by ICJ on charges that he participates in organized kidnapping of Ukrainian children. Instead, Putin only visits countries which do not recognize ICC’s authority. What then links such an arrest with allegations of Israel committing genocide?
The ICC probe should not be confused with another related case pending against Israel which is genocide charge preferred against it by some countries around the world including South Africa. Among other things, South Africa has registered a suit at International Court of Justice (ICJ) over many deaths in Gaza.
Similarly located in The Hague but unlike the latter institution; ICJ neither prosecutes individuals nor issues arrest warrants but resolves intergovernmental legal disputes exclusively. At end January ICJ warned about “the risk of genocide occurring” within Gaza Strip
Even so, ICJ failed to support this emergency motion filed by South Africa calling upon Israel to immediately stop all military operations in the enclave. Consequently, such a position could make genocide claims against Israel drag on for months or even years ahead.
