Recently, rumors and estimates have grown stronger that the International Criminal Court in The Hague (ICC) will soon make a decision to issue arrest warrants against senior Israeli officials, and in particular against Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and IDF Chief of Staff Herzi Halevi, for international crimes they are allegedly involved in regarding the fighting in Gaza.
According to the partial reports, Chief Prosecutor Karim Khan may ask the pre-trial supervisor to issue arrest warrants. It is important to clarify that approval is not automatic. The pre-trial supervisors, consisting of three judges, will ask to see sufficient justification and evidence to issue warrants for arrest, as mentioned.
Such a procedure is not immediate and may take several weeks. Additionally, to the extent that Khan has indeed decided to move forward with the proceedings and request arrest warrants, it is expected that at the same time, he will also request the issuance of arrest warrants against the heads of Hamas in Gaza (among them Yahya Sinwar and Mohammed Deif) and possibly also outside the area headed by Haniyeh.
Although Israel took an active part in the drafting of the Rome Statute, it was not a party to the statute and did not give jurisdiction to the ICC regarding its territory or in relation to its citizens. The ICC’s jurisdiction stems from the Palestinians’ controversial accession to the Rome Statute in January 2015.
Israel does not recognize the status of the Palestinian Authority as a state body that can accede to the treaty and give the court jurisdiction, and therefore strongly opposes the very inspection and investigation and is not expected to cooperate with such arrest warrants.
The ICC has already dealt with the question of the territory of Palestine, and in February 2021, it was determined that such authority exists. Unlike the International Court of Justice (ICJ), which deals with state responsibility as a state, the ICC deals with individual criminal responsibility regarding international crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.
The consequences will be significant if the court in Israel accepts such a request and approves the issuance of arrest warrants against the prime minister, the defense minister, and the chief of staff.
In principle, many questions and discussions will arise regarding the meaning of the immunity of heads of state and the conflict of these immunities that exist for the prime minister and probably the defense minister (but not the chief of staff) in the face of the obligations of the 124 countries that joined the Rome Statute to uphold the arrest warrants, including against heads of state.
The officials will be able to continue to visit countries that are not members of the Rome Statute. This list, of course, includes the US, which is not a member of the Rome Statute, as well as China, India, Russia, Egypt, Turkey, Saudi Arabia, and North Korea.
Practically speaking, Israel will suffer great, and perhaps irreversible, damage in the international arena since international arrest warrants have a meaning beyond the question of their actual enforcement. Following the publication of such an arrest warrant for the prime minister, it will be discussed in the same breath with the president of Russia, against whom an arrest warrant is also pending.
A move to issue arrest warrants may give impetus to the intention of countries to avoid selling weapons and spare parts to Israel and increase the pace of Israel’s international isolation, which is gradually taking shape. To the extent that the arrest warrants refer to the crimes of genocide and starvation, their issuance may also have an impact on the ongoing process in the International Court of Justice (ICJ), which also sits in The Hague, between South Africa and Israel and to encourage the judges to expand the interim orders that have already been issued in relation to Israel.
Will Israeli arrests lead to justice against terrorist leaders?
When looking at the full picture, it should be noted that recently, the Lebanese government also decided to grant the International Criminal Court ad hoc jurisdiction over crimes committed on its territory as of October 7. There is no doubt that contrary to the question of the legitimacy of the Palestinians to grant such jurisdiction, Lebanon has full authority to do so.
This means that the prosecutor at the High Court will soon be able to start a preliminary investigation regarding the international crimes committed on the territory of Lebanon on the part of Israel, but of course, also on the part of the Lebanese government and the Hezbollah organization (both in relation to Israel and in relation to the people of Lebanon).
An optimistic forecast expects that on both fronts, the proceedings of the ICC will lead to arrest warrants against senior Hamas and Hezbollah officials. A more realistic forecast would refer to the fact that at the same time as the arrest warrants against senior officials in terrorist organizations, arrest warrants were also issued against senior officials in the Israeli system. In order to avoid long-term damage (at least beyond the damage already caused), Israeli politicians should start taking the system and rules of international law seriously, not only in retrospect, when the wheels of international justice are already in action.
One of the defense mechanisms that the state will seek to activate in its favor is the residual mechanism, which states that the ICC will be able to apply its jurisdiction only when Israel’s legal system is not interested or able to act properly on its own. Thus, it will be important to show the independence, quality, and independence of the Israeli justice system to the local politicians.
The proceedings against Israel at the ICC can be seen as a problematic result of the international criminal justice system. Issuing arrest warrants against senior Israeli officials will certainly affect Israel. It will also have an impact on the country’s international relations.
On the other hand, it is unclear if the international justice system will be able to get its hands on the leaders of Hamas or the leaders of Hezbollah, who do not tend to travel to countries that are members of the Rome Statute. Thus, the chances that they will actually be extradited or that they will be directly affected by this are slim to non-existent.
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