The International Criminal Court (ICC) at The Hague has stoked outrage today after it announced that it is applying for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Israel’s defence minister, Yoav Gallant, along with the head of Hamas, Yahya Sinwar, the head of Hamas’ Al-Qassam brigade, Mohammed Diab Ibrahim Al-Masri, and the head of its political bureau, Ismail Haniyeh.
Washington has fiercely condemned the court’s decision to include Israeli leaders in its applications for arrest warrants. President Joe Biden labelled the move “outrageous” while US Secretary of State, Anthony Blinken, insisted: “The United States has been clear since well before the current conflict that that ICC has no jurisdiction over this matter.”
The UK has opted to discredit the ICC’s decision in much milder terms, with a Number 10 spokesperson saying: “This action is not helpful in relation to reaching a pause in the fighting, getting hostages out or getting humanitarian aid in”.
The Hamas contingent stands accused of extermination, murder, hostage-taking, rape, torture, cruel treatment of prisoners, and other inhumane acts in regard to the October 7 attacks and subsequent hostage crisis. In the ICC’s statement, it estimates that Sinwar and his cohorts are responsible for the killings of hundreds of Israeli civilians and the taking of at least 245 hostages.
Concurrently, the senior leaders of Israel, Netanyahu and Gollant, also face accusations from the ICC of extermination, along with enforced starvation, murder, intentional targeting of civilians, and other inhumane acts in relation to their Gaza campaign and actions in the West Bank.
The head of the ICC prosecution, British Barrister Karim Khan, says he must uphold a “willingness to apply the law equally” and has convened an independent panel of international law experts to review all gathered evidence.
Khan called the Hamas attack “unconscionable” but also labelled Israel’s response as criminal, stating: “Israel, like all states, has a right to take action to defend its population. That right, however, does not absolve Israel or any state of its obligation to comply with international humanitarian law”.
But Washington certainy hasn’t interpreted this as an equal application of law. “Let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” fumed Biden.
Applying for arrest warrants is not quite equivalent to actually issuing arrest warrants. For issuance to occur, the application must first clear the Pre-Trial Chamber, a three-judge body which can formally issue warrants upon approval.
The announcement leaves Israel and Hamas in a rare state of agreement. Both sides have denounced the ICC decision, with Hamas demanding its “immediate cancellation” and Israeli officials calling it “an outrageous move that cannot be accepted”. Israel’s foreign minister, Israel Katz, also announced that a “special war room” will be established to contest the decision.
The arrest warrants, if produced, would not be binding for either Israel or Qatar (where the Hamas political leadership resides), as neither country has signed onto ICC membership.
However, along with serving a major symbolic role, the issuance of warrants could create many diplomatic headaches for the accused parties as signatory nations are bound to respect ICC arrest warrants and deliver defendants to face trial at The Hague.
The United Kingdom, as a signatory to the guiding treaty, has assisted in controversial ICC warrants in the past. In 1998, the UK delivered a “wake up call to tyrants around the world”, when it arrested former Chilean dictator Augusto Pinochet for crimes against his people.
The ICC is not to be confused with the International Court of Justice (ICJ). The latter body enforces judgements between states, whereas the ICC deals with individuals. The ICJ also has a current case around the Gaza War, in which South Africa, Colombia, Turkey, and Egypt are accusing Israel of violating the genocide convention.
However, ICJ and ICC verdicts are often not respected. South Africa, despite its ICJ case, has rejected the primacy of the ICC by protesting its arrest warrant for Vladimir Putin. The South Africans claimed the warrant would upset the BRICS alliance, and that an arrest would be akin to a declaration of war.
Nonetheless, the ICC warrant has certainly made diplomatic travel complicated for Putin, as many states have announced they would attempt to arrest the Russian autocrat. Similarly, certain international visits will become tricky for Netanyahu and Gallant if given a formal warrant.
The real fallout from the decision could occur decades from now, as successful ICC prosecutions always come long after the tenures of the accused. Thus, arrest warrants could hang over the Israeli duo for decades after they leave office, potentially preventing them from travelling to the United Kingdom, Europe, and many other nations.
Although we won’t see Sinwar or Netanyahu in The Hague anytime soon, or perhaps ever, the ICC application for arrest warrants is certainly a significant, and unique event. For the first time, a close ally of the western world, who was democratically elected, stands accused of war crimes by the ICC.
Responding to the ICC’s new announcement is an awkward task for the UK and US given that both countries hailed Putin’s ICC warrant as a great success. By rejecting the ICC’s determination, they risk casting the legitimacy of international law into peril by abandoning one of its foremost, and well-respected, institutions. But, if they had accepted Khan’s assertion, as advocated by Labour MP Zarah Sultana, that would have meant admitting culpability in a criminal, inhumane offensive.
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