Roy Shinar Cohen
After months of investigation and days of speculation, Karim Khan made a dramatic announcement. Khan, the Prosecutor of the International Criminal Court (ICC) applied to issue arrest warrants for suspected Israeli and Palestinian war criminals. These criminals are the leaders of Hamas, Ismail Haniyeh, Mohammed Diab Ibrahim Al-Masri (known as Mohammed Deif), and Yahya Sinwar, and Israel’s Prime Minister Benjamin Netanyahu and Secretary of Defence Yoav Gallant.
The two sides of this terrible war are accused of different War Crimes and Crimes Against Humanity. The accusations against the Israeli side focus on starvation as a weapon of war, the intentional killing of civilians and the blocking of humanitarian aid. Those against Hamas focus on extermination and hostage-taking, including rape and other acts of sexual violence and torture. These are different crimes that have happened in parallel in the months since October 7th.
International arrest warrants were feared in Israel long before this war. In 2009 Israel’s Prime Minister Ehud Olmert feared arrest in London on charges of war crimes during a previous war in Gaza, and in 2017 Israel’s former Minister of Foreign Affairs Tzipi Livni feared arrest in Brussels for her role in the same war. In recent weeks, however, the growing fear has been apparent in Netanyahu’s rhetoric and U.S. Republican Congresspeople’s threats to the ICC and Khan. Now, with the two highest-ranking Israeli politicians awaiting arrest warrants, Israeli officials worry Khan will issue further warrant requests against generals.
According to Khan’s statement, he has reasonable grounds to believe Netanyahu and Gallant “bear criminal responsibility for the following war crimes and crimes against humanity”: starvation of civilians as a method of warfare; wilful killing; willfully causing great suffering, or serious injury to body or health; intentionally directing attacks against a civilian population; extermination, and/or murder; persecution as a crime against humanity; and “other inhumane acts”. He added that these acts “were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy”. And that “These crimes, in our assessment, continue to this day.”
On Hamas’s side, Khan’s statement details the following War Crimes and Crimes Against Humanity: extermination; murder; taking hostages; rape and other acts of sexual violence; torture; cruel treatment; other inhumane acts; and outrages upon personal dignity. Khan added that these crimes were “part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups”. And that “Some of these crimes, in our assessment, continue to this day”.
Both Hamas and Israel condemned the arrest warrants against themselves, while hailing those against the other. Hamas stated that the arrest warrants against Netanyahu and Gallant are “too late by seven months” and added that those against its leaders create “an equivalence between the victims and the executor”. In Israel, 106 (out of 120) members of the Knesset (Israel’s parliament) signed a letter slamming the warrants as antisemitic and claiming the Israel Defence Force (IDF) is “the most moral military in the world”. The next day, Gallant posted a similar statement on social media, stressing “the unique humanitarian efforts” taken by the IDF, “the likes of which have not been taken in any armed conflict.”
Several Western countries joined Israel in condemning the ICC. Most notably, President Biden published a statement calling the arrest warrants against Israeli leaders “outrageous”, and emphasized that there is “no equivalence” between Israel and Hamas, reaffirming the United States’s support of Israel. Additionally, Germany stated that the arrest warrants create “a false comparison” between Israel and Hamas. In the United Kingdom, Prime Minister Sunak called the arrest warrants “unhelpful” in efforts to stop the war, release the Israeli hostages and enter more humanitarian aid into Gaza. On the other hand, France reaffirmed its support for the ICC and its independence, and Senator Bernie Sanders said Khan is right in requesting arrest warrants for both Hamas and Israeli leaders for credible suspicion of war crimes.
Beyond initial responses and statements, the real question is what, if at all, these arrest warrants will change. Since the beginning of the war, Israel has made clear its intention to find and kill any Hamas leader involved in the October 7th attack, especially Sinwar, Deif, and Haniyeh. Regardless of the arrest warrants against the Israeli officials, it is safe to assume that if any of the wanted Hamas leaders were found by Israeli forces their fate would be sealed long before they appear in court. On the off chance that the Hamas leaders do appear in court, it is nearly impossible to imagine Israel forgoing letting its own courts determine their fate. But, even if Israel did not want to sentence them itself, it would not hand them to the ICC. Handing Sinwar, Deif, and Haniyeh to the ICC would recognise its legitimacy, which Israel cannot due because the ICC wants to arrest its own leaders.
However, discussing Israel’s courts raises the issue of the complementarity principle. According to it, Israeli courts gain priority in dealing with alleged crimes, and if they investigate and hear the cases they are not in the international legal system’s jurisdiction. Accordingly, if Netanyahu and Gallant will be investigated for War Crimes and Crimes Against Humanity by the Israeli legal system, it may pull the rug from under Khan’s investigation. Yet, considering the public and official positions in Israel regarding the handling of the Gaza War and War Crimes allegations, an Israeli criminal investigation is not likely to happen any time soon.
Hamas’s leaders may not be the only ones who do not receive their day in trial. It is possible to imagine a scenario in which Netanyahu and Gallant avoid their arrest and trial. The ICC does not have its own police force and depends on the 124 countries which ratified the Rome Statute and would make arrests. Israel is not one of those countries. In other words, as long as Netanyahu and Gallant avoid these countries, they would avoid arrest. This dependency on other countries allows many of the ICC’s wanted people to avoid arrest for years, including Russian President Vladimir Putin, the Russian President, and Saif Al-Islam Gaddafi, the Libyan dictator’s son, who has been wanted since June 2011.
Netanyahu and Gallant could live the remainder of their lives free in Israel and other countries (including the United States, Russia, China, Saudi Arabia, Turkey, and Iran). This could be the case in particular if they lose their jobs in the next election, and eventually quit public life. In such a scenario, especially if the war ends and the Israeli Government is replaced, the ICC arrest warrants could remain mostly a symbolic statement against Israel’s actions and policies in the Gaza War.
Yet, the arrest warrants against Netanyahu and Gallant could still be influential even if they avoid trial. Throughout the Gaza War, Israel’s international legitimacy has been eroding: the state stands trial in the International Court of Justice (ICJ) where it is accused of breaking its commitments to the Genocide Convention; the United Nations Security Council passed a resolution calling for a cease-fire; several countries suspended arms sales to Israel; Western countries sanctioned Israeli settlers for violence against Palestinians; and more.
The current arrest warrants may signify to the international community as a whole that something has changed and thus legitimise further steps to penalise Israel. For instance, Israel’s leaders being wanted for war crimes and crimes against humanity might incentivise more countries to stop selling arms to Israel or to impose sanctions on the state. Additionally, it could now be more challenging for the United States to veto future United Nations Security Council resolutions calling to end the war. Israel’s security, economic prosperity, and diplomatic ties are all dependent on the West, and a substantial change in attitudes could have severe implications for the State of Israel and its citizens.
These options do not bring us any closer to understanding the true implications of the ICC arrest warrants against Israeli and Hamas leaders. We are left with different possibilities. The ICC’s arrest warrants join the ICJ’s ongoing proceedings against Israel. While the international community attempts to stop the Gaza War and hopes to hold those responsible for its immense suffering accountable, it is not at all clear that it will succeed. On the one hand, officials could be arrested and stand trial for their actions and decisions, and on the other hand, they could take relatively accessible measures to avoid arrest. A third option, however, is that these arrest warrants create a domino effect of cutting support to and possibly sanctioning Israel. As observers, we are left with little to do but wait for the chips to fall.
