Fatshimetrie: Arrests requested for Hamas and Israeli leaders for war crimes before the ICC following the Gaza conflict
Announcement of request for arrest of top leaders of Hamas and Israel by the International Criminal Court (ICC) for war crimes and crimes against humanity related to the October 7 attacks on Israel and subsequent war in Gaza has shed a harsh light on the ongoing conflict in the Middle East.
If the arrest warrants were validated by a panel of judges, they would be issued against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Warrants are also sought for three senior Hamas officials: Gaza leader Yahya Sinwar, political leader Ismail Haniyah, and Mohammed Diab Ibrahim al-Masri, the head of Hamas’ armed wing, better known as Mohammed Deif.
What would be the consequences of an arrest warrant for Netanyahu or Hamas leaders?
The decision to seek arrest warrants does not immediately mean that the individual is guilty, but it is the first step in a process that could lead to a lengthy trial.
If the Court finds sufficient evidence of crimes, it may summon the suspect to appear voluntarily. The Court can also issue an arrest warrant, relying on member countries to make the arrest and transfer the suspect to the ICC.
If the suspect appears before the Court, a pre-trial phase takes place during which the Court decides whether there is sufficient evidence for the case to proceed to trial. Next, a trial before three ICC judges takes place, during which the prosecution must prove “beyond a reasonable doubt” that the individual is guilty of the alleged crimes.
Once the verdict is handed down, the accused individual can be sentenced to up to 30 years in prison. In exceptional circumstances, a sentence of life imprisonment can also be imposed, specifies the Court.
To date, the ICC has issued arrest warrants for 42 people, 21 of whom were arrested with the assistance of member states.
“The immediate problem for Israeli officials targeted by an ICC arrest warrant would be that the Court’s 124 member states would have a legal obligation to arrest these officials if they travel to any of those 124 countries “wrote Chile Eboe-Osuji, former ICC president, this month in Foreign Policy magazine.
“This obligation should not be underestimated,” he added, pointing out that “just last year, Putin canceled his plans to attend the BRICS summit in South Africa, apparently due to the obligation of Pretoria to arrest him.”
Of the Hamas leaders targeted by arrest warrants, two – Sinwar and Deif – are believed to be in Gaza, while Haniyah resides in Qatar, which has not signed the Rome Statute.
What is the ICC and who can it charge?
Based in The Hague, Netherlands, the ICC was established in 2002 with the mission of prosecuting individuals for crimes of genocide, crimes against humanity and war crimes.
Unlike the International Court of Justice (ICJ), the ICC is not a United Nations body and does not prosecute states.
Although the ICC is independent of the UN, it is supported by the UN General Assembly and maintains a cooperation agreement with the UN. When a case does not fall within the jurisdiction of the ICC, the UN Security Council may refer that case to the ICC, thereby granting it jurisdiction.
The Court can investigate alleged crimes committed on the territory or by a national of a state that has accepted the Court’s jurisdiction by signing the Rome Statute, the treaty that established the ICC. Any member state can ask the ICC prosecutor to launch an investigation.
The court has previously issued arrest warrants for high-ranking figures, including former Sudanese President Omar al-Bashir, Saif al-Islam Gaddafi, the son of the late Libyan leader Moammar Gaddafi, and most recently, President Russian Vladimir Putin.
Signatory states are required to arrest people subject to arrest warrants, but leaders have often sought to evade these warrants, restricting their freedom of movement.
The ICC does not have its own enforcement machinery and relies on country support to make arrests.
Does the ICC have jurisdiction over Israeli nationals?
Israel’s actions in Gaza were brought to the ICC by five countries – South Africa, Bangladesh, Bolivia, Comoros and Djibouti – in November, calling on the court to investigate possible crimes of genocide, crimes against humanity and war crimes, among others, in the Palestinian territories, and asking him to determine whether “a specific person or persons should be indicted.”
Israel does not recognize the jurisdiction of the ICC because it has not signed the Rome Statute. But this does not mean that its citizens cannot be prosecuted by the Court.
The court was already investigating possible crimes committed by Israel since 2014 in Gaza, the occupied West Bank and occupied East Jerusalem. The investigation began in March 2021 and was brought to the Court by the Palestinian Authority, which adopted the ICC mandate in 2015 on behalf of the State of Palestine. The ICC then concluded that it had jurisdiction in the conflict and, “by a majority, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.”