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The International Criminal Court (ICC) is seeking arrest warrants for the Israeli Prime Minister and Minister of Defense. However, the warrants have not yet been granted, nor has authorization for an investigation, and the ICC has no police force to enforce the warrants if they are issued.
ICC Prosecutor Karim A.A. Khan has applied for arrest warrants for five individuals connected with the Israel-Hamas War. Three from Hamas: Yahya Sinwar (Head of Hamas in Gaza), Mohammed Deif (Commander-in-Chief of the Al-Qassam Brigades), and Ismail Haniyeh (Head of Hamas Political Bureau) for war crimes committed in Israel and Palestine from October 7, 2023.
The other two alleged perpetrators are Israeli officials: Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Minister of Defense of Israel, for war crimes and crimes against humanity in Gaza from at least October 8, 2023.
Israel’s specific actions condemned by the ICC prosecutor include closing border crossings, blocking aid supplies such as food and medicine, cutting off cross-border water and electricity to Gaza, and attacking and killing aid workers. Israel states that the aid workers were killed accidentally in the normal context of war.
They justify the other allegations by citing the need to prevent terrorists from entering Israel and to stop weapons and ammunition from getting into Gaza. These measures pertain to Israel’s sovereign borders, and a country has the right to enforce its border policy. Ironically, Egypt is not being charged despite also closing its borders, hindering refugee exits, and preventing aid shipments from entering.
The official statement of the ICC acknowledges that Israel took these actions to (i) eliminate Hamas, (ii) secure the return of hostages abducted by Hamas, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.
It is questionable whether the third point is true. As for eliminating Hamas and recovering the hostages, the ICC did not offer an alternative solution for how Israel should achieve these goals through acceptable means.
Those in favor of the ICC warrants against Israel point out that the ICC has also issued warrants for nefarious characters like Vladimir Putin and various other dictators and despots.
The rogues’ gallery of high-level offenders who have had ICC warrants enforced on them includes Libyan leader Muammar al-Qaddafi, his son, and brother-in-law for crimes against humanity; Uhuru Kenyatta, Kenya’s finance minister and a deputy prime minister; former Egyptian president Hosni Mubarak; former Guatemalan President Efrain Rios Montt for genocide; former Ivorian President Laurent Gbagbo for crimes against humanity; and Kosovar President Hashim Thaci for war crimes. Supporters of the ICC warrants argue that if Israel’s allies flout these charges against Israel, it undermines the court’s authority to take action against other violators.
Before issuing an arrest warrant, the ICC must undergo several steps, including a preliminary examination, authorization of an investigation, gathering of evidence, and a review by a Pre-Trial Chamber. An investigation must be conducted to establish sufficient grounds for the warrant.
If Israel refuses to cooperate with an ICC investigation, the ICC can still proceed by relying on evidence gathered from other sources, such as non-governmental organizations, international agencies, or states willing to assist.
Moreover, the UN Security Council has the authority to refer situations to the ICC, even if the country involved is not a signatory to the Rome Statute, the treaty that established the ICC and defines its functions, jurisdiction, and structure. However, this referral requires a resolution supported by the majority of Security Council members, which can be difficult to achieve due to geopolitical considerations.
If sufficient grounds are found to issue the warrant, the ICC lacks a police force to enforce it, relying instead on member states to carry out arrests. Only countries that are signatories to the Rome Statute are obligated to enforce these warrants. Israel is not a signatory, which complicates the situation. The State of Palestine, while not a signatory in the traditional sense, has acceded to the Rome Statute.
In contrast, the US, China, India, Russia, and almost all Arab states are not parties to the Rome Statute. This means that unless the individuals in question travel to a signatory country willing to enforce the warrants, the likelihood of their arrest remains low. While signatory countries would be obligated to arrest the Israeli Prime Minister if he visited, no country would invade Israel to make the arrest.
Although the U.S. is not a signatory to the Rome Statute, it holds considerable influence over many ICC member states. The U.S. can leverage diplomatic pressure to discourage countries from cooperating with the ICC in specific cases.
Additionally, the U.S. has passed laws, such as the American Service-Members’ Protection Act (ASPA), which includes provisions to protect U.S. nationals and allies from the ICC’s jurisdiction. This can extend to diplomatic efforts to protect Israel.
If the countries tied to the crime are not signatories to the ICC, the court can still investigate if the United Nations Security Council refers the case, if a non-signatory state accepts the court’s jurisdiction, or if the crimes occurred on the territory of a signatory state. However, Israel is unlikely to accept the court’s jurisdiction, and neither Israel nor Palestine are traditional signatories.
Therefore, obtaining a referral from the UN Security Council would be necessary, but this is unlikely given that three of the five permanent members (the US, China, and Russia) are not signatories and would likely object. Even if Russia and China perceived that they could gain some benefit by agreeing to enforce the ICC investigation, the United States could still veto the resolution.
The bottom line is that the issuance of an arrest warrant is unlikely, and the enforcement even less so.
