What happens after ICC prosecutor seeks arrest warrants for Israeli, Hamas officials?

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The International Criminal Court prosecutor’s office has requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defence chief, and also for three Hamas leaders for alleged war crimes and crimes against humanity. Here is a look at what happens next, and how the ICC prosecutor’s move might impact diplomatic relations and other court cases focused on Gaza.

What happens next at ICC?

Prosecutor Karim Khan’s request goes to a pre-trial chamber. The chamber will be composed of three magistrates: presiding judge Iulia Motoc of Romania, Mexican judge Maria del Socorro Flores Liera and judge Reine Alapini-Gansou of Benin. There is no deadline for judges to decide whether to issue arrest warrants. In previous cases, judges have taken anywhere from just over a month to several months.

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If the judges agree there are “reasonable grounds” to believe war crimes or crimes against humanity have been committed, they will issue an arrest warrant. The warrant must name the person, the specific crimes for which an arrest is sought and a statement of facts which are alleged to constitute those crimes.

Judges can amend arrest warrant requests and grant only portions of what the prosecutor is seeking. Charges can also be changed and updated later.

Israeli and Hamas leaders have dismissed allegations of committing war crimes, and representatives of both sides criticised Khan’s decision.

Will Netanyahu and the Hamas leaders be arrested?

The ICC’s founding Rome statute combined with jurisprudence from past cases involving arrest warrants against sitting heads of state oblige all 124 ICC signatory states to arrest and hand over any individual subject to an ICC arrest warrant if they set foot on their territory. However, the court has no means to enforce an arrest. The sanction for not arresting someone is a referral back to the ICC’s assembly of member states and ultimately a referral to the UN Security Council.

Can an ICC investigation or warrant be paused?

The court’s rules allow for the UN Security Council to adopt a resolution that would pause or defer an investigation or a prosecution for a year, with the possibility of renewing that indefinitely.

In past cases where a state has ignored its obligation to arrest an individual facing an ICC warrant, they have received a procedural slap on the wrist at most.

Israel or the Palestinian authorities could also formally petition the office of the prosecutor to defer the case because they are investigating or prosecuting the same people for substantially the same alleged criminal acts themselves.

The prosecutor would then need to pause the case and review if the state which requested the deferral is indeed carrying out a genuine investigation. If the prosecutor deems the national investigations are not sufficient, he can apply for judges to reopen the investigation.

Can Netanyahu and Hamas chief Yahya Sinwar still travel?

Yes, they can. Neither the application for a warrant nor the issuance of an ICC arrest warrant curbs an individual’s freedom to travel. However, once an arrest warrant has been issued, they risk arrest if they travel to an ICC signatory state, which may influence their decision-making.

There are no restrictions on political leaders, lawmakers or diplomats from meeting individuals with an ICC arrest warrant against them. Politically, however, the optics of this may be bad.

Will this application for warrants influence other cases?

Not directly, but perhaps indirectly. The ICC application is a separate matter to, for example, court cases demanding an arms embargo against Israel or South Africa’s attempts at the International Court of Justice to seek a halt to Israel’s offensive on Rafah.

If the judges decide there are reasonable grounds to believe Netanyahu and Defence Minister Yoav Gallant are committing war crimes and crimes against humanity in Gaza, it could strengthen legal challenges demanding an arms embargo elsewhere as numerous states have provisions against selling arms to states which might use them in ways that violate international humanitarian law.

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