The ICC's issuing of international arrest warrants against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant over allegations of their responsibility for alleged "war crimes" in the Gaza Strip, raises several questions regarding jurisdiction, enforcement, international implications and practical consequences.
Is Israel subject to the jurisdiction of the International Criminal Court (ICC)?
Israel is not a signatory to the Rome Statute, which established the ICC. However, under the statute, if an individual commits a war crime within the territory of a state party, the ICC has jurisdiction over them even if they’re a foreign national.
The Palestinians joined the statute in 2014 as a member state, using this as a basis to extend its application to Israelis. In February 2021, the ICC’s Pre-Trial Division ruled by a majority that the ICC prosecutor has the authority to investigate alleged war crimes in Palestinian territories beyond the Green Line (the West Bank, Gaza and East Jerusalem).
Who can issue an international arrest warrant on behalf of the ICC?
The authority to issue an arrest warrant lies with the judges of the ICC’s Pre-Trial Division, following a request from the prosecutor. This requires a judicial process in which the judges review the preliminary evidence presented by the prosecutor.
An arrest warrant may be issued under the following conditions outlined in Article 58 of the Rome Statute:
There are reasonable grounds to believe the individual committed a crime within the court's jurisdiction;
Arrest is necessary to ensure the individual’s appearance in court, prevent obstruction of the investigation or proceedings or prevent the ongoing crime or related offenses;
Issuing these warrants requires a judicial process before the Pre-Trial Division, which approved the prosecutor’s requests.
Who has previously faced ICC arrest warrants?
Netanyahu and Gallant join a "notorious club" of dictators and war criminals subjected to ICC warrants, such as Sudan's former President Omar al-Bashir, Libyan General Mahmoud al-Werfalli and Joseph Kony, leader of Uganda’s Lord's Resistance Army, which abducted tens of thousands of children to serve as soldiers or sex slaves.
The most significant recent ICC arrest warrant was issued against Russian President Vladimir Putin and other senior officials for the abduction and deportation of children from Ukraine.
Why haven’t similar warrants been issued against Hamas leaders for war crimes?
The ICC has issued a warrant only for Mohammed Deif, who was reportedly killed despite no official confirmation. Equating Hamas terrorists with Israeli officials is seen as a moral and legal travesty, a serious error by the ICC prosecutor and a profound ethical low point.
Who enforces ICC arrest warrants?
The ICC has no enforcement powers or police force to carry out arrests. Once an arrest warrant is issued, all member states of the Rome Statute are obligated to assist in executing the warrant and extraditing the suspect.
There are 123 member states, including all South American nations, most European countries, Australia, Canada and about half of the nations in Africa. However, countries like the U.S., India and China aren’t a part of the agreement.
This means any travel by Netanyahu or Gallant to a Rome Statute member state could potentially expose them to arrest and extradition to the ICC.
However, not all member states cooperate with the ICC. For example, in 2015, Sudanese President Omar al-Bashir attended an African Union summit in South Africa and was allowed to leave the country despite an outstanding arrest warrant.
What are the potential implications of these arrest warrants for Israel?
Historically, ICC arrest warrants have mainly targeted dictators and war criminals. Issuing such warrants against leaders of a democratic state with an independent judiciary like Israel sets a dangerous precedent and appears to be an attempt by the ICC to demonstrate that it investigates "powerful" states as well.
The warrants could intensify global protests against Israel and pressure friendly Western governments to impose sanctions such as arms embargoes. Some are concerned that the warrants could significantly bolster claims by Israel's opponents that war crimes are being committed in Gaza, lending these allegations the ICC’s "stamp of approval."
Do the warrants indicate charges have already been filed?
Issuing arrest warrants is a very preliminary stage in the ICC's legal process. Filing formal charges against Israeli officials would be a lengthy process. Moreover, under international law, domestic legal systems take precedence over international courts in prosecuting violations of international law — a principle known as the principle of complementarity.
Dr. Matan Gutman Photo: Shlomi YosefIn this context, Israel has substantial legal arguments asserting the existence of robust internal oversight and judicial mechanisms that obviate the need for external intervention.
In their ruling on Thursday, the judges clarified that they weren’t addressing Israel’s potential defenses, such as complementarity, which would be discussed at later stages. This underscores the importance for Israel to continue bolstering its legal defenses via independent internal investigations to prepare for the next phases of the proceedings.
- Dr. Matan Gutman is a lawyer, Ynet's legal analyst, and an expert in constitutional law, administrative law and human rights law.
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