It’s been over seven months since the bombings of Gaza started. During the ensuing international humanitarian crisis, nations have continued to disagree over what should be done. On Monday, prosecutors for the International Criminal Court (ICC) applied for the arrest warrants for leaders of both Israel and Hamas. But what is the ICC, and how does this all work?
What Is the ICC?
The International Criminal Court is an intergovernmental organization and international tribunal. Based in the Hague, the Netherlands, it was established in 2002 by an international treaty. There are currently 124 member states (participating countries) signed to this treaty.
The ICC works as a “court of last resort,” meaning it steps in when national courts are unable or unwilling to prosecute these crimes. In other words, it doesn’t replace national judicial systems but serves as a complement to them. It isn’t independent of national systems; because the ICC doesn’t have its own police force, it relies on cooperation with countries for arrests, detentions, and enforcement of sentences. The ICC also has a separate trust fund to support victims of the crimes it prosecutes.
The ICC is the first and only permanent international court that can prosecute individuals for the most serious crimes of concern to the international community. What crimes rise to that level of “seriousness”? They’re the worst things you could do: genocide, crimes against humanity, and war crimes. Additionally, the crime of “aggression” was added in 2017.
Not Your Average Court
Now, the word “court” in the ICC’s name may be a bit misleading if you’re used to the U.S. legal system, which separates the roles of the judiciary (courts) and prosecutors. The U.S. follows the principle of separation of powers. Courts are supposed to be impartial arbiters of the law, not advocates for one side. Having a separate prosecutorial branch helps maintain this neutrality. The separation of judges and prosecutors is a core feature of the U.S. adversarial system, and aims to ensure fairness and accountability within the criminal justice process. And it’s not just Americans that do this; the UK, Canada, Australia, India, and other common law countries keep courts and prosecutors separate.
Coming from this kind of system, you might be confused to read headlines referring to an “ICC prosecutor.” The reason the ICC has its own prosecutor while some countries separate courts and prosecutors stems from the different structures of international courts and national courts. The ICC isn’t a court within a single nation-state. It’s an international tribunal with jurisdiction over a limited range of crimes. On the other hand, courts in countries like the U.S. handle national crimes within a defined legal framework. American prosecutors are part of the national government’s executive branch, accountable to voters within the system.
But with international courts like the ICC, there’s no existing higher authority like a national legislature or executive to oversee prosecutions. To ensure independent and impartial investigations and prosecutions, the ICC needs a dedicated prosecutor’s office. This prosecutor acts as a single entity representing the international community, not beholden to the specific interests of any nation.
Whereas country or state governments might have a large team of individual prosecutors, the ICC does not. There’s one Chief Prosecutor (currently Karim Khan) who leads the Office of the Prosecutor (OTP), and he’s assisted by a team of Deputy Prosecutors (of which there are currently two). The Chief Prosecutor is the driving force behind the ICC’s investigative and prosecutorial work.
The ICC also has limited resources compared to national court systems. Having a centralized prosecutorial office allows for efficient use of resources and expertise in investigating complex international crimes. In short, the ICC’s structure necessitates a dedicated prosecutor to represent the international community, while the US system separates these roles to ensure fairness and accountability within a national framework.
The ICC’s Process
Based on its unique structure, the ICC’s investigation and trial process are different from what you may be used to in your own country. Before a full investigation, the OTP conducts a preliminary examination, where they assess information about a situation to determine if there’s a basis for a case. The prosecutors consider factors like jurisdiction and the gravity of the crimes.
It’s important to remember that the ICC’s jurisdiction is secondary to national courts. This is based on the idea that states have the best access to evidence and witnesses and better resources to carry out proceedings. Therefore, the ICC can only prosecute cases when a state is unwilling or unable to do so — a principle known as “complementarity.” So, one big consideration in the preliminary examination is whether national courts are already handling the prosecution of a case.
If the OTP decides to move forward, it launches a formal investigation. This involves gathering evidence, interviewing witnesses, and visiting crime scenes. Prosecutors must collect both incriminating and exonerating evidence to ensure a fair trial. Once they have enough evidence, they request a warrant for the suspect’s arrest (or alternatively, a summons to appear in court) from ICC judges.
The Investigation in Israel
Chief Prosecutor Karim Khan has gone through the preliminary investigation and other initial steps, and his office has decided to apply for the arrest warrants of some of Hamas and Israeli leaders. Specifically, the crimes they are alleging occurred during last October’s Hamas-led attack on Israel and Israel’s subsequent war launched in Gaza.
The OTP has applied for warrants of the three Hamas leaders, Yahya Sinwar, Ismail Haniyeh, and Mohammed Diab Ibrahim al-Masri (a.k.a. “Deif”), for both war crimes and crimes against humanity. In his public statement, the Khan lays out the specific crimes that these Hamas leaders are accused of. They include extermination, murder, taking hostages in war, rape and other acts of sexual violence, torture, cruel treatment, and “outrages upon personality dignity.”
Khan’s office has also applied for the warrants of Israel’s Prime Minister, Benjamin Netanyahu, and Israel’s Defense Minister, Yoav Gallant. The OTP is similarly alleging these two leaders of Israel committed crimes against humanity and war crimes. Specifically, crimes that Netanyahu and Gallant allegedly committed include “starvation of civilians as a method of warfare,” willfully causing “great suffering, or serious injury to body or health,” willful killing, “intentionally directing attacks against a civilian population,” persecution, extermination, and murder.
Khan said that during his visits to Gaza and surrounding areas, he personally “saw the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today.” He said: “Speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness. These acts demand accountability.”
Does It Mean Anything?
The ICC relies on cooperation from member states for various aspects, including arrests, detentions, and enforcement of sentences. So far, neither Hamas nor Israel seem inclined to prosecute anyone for war crimes, which is not surprising. So, while Khan can demand accountability all he wants, it’s up to the rest of the world to make good on the prosecution’s case.
The application for the arrest warrant now goes before three ICC judges who will ultimately determine whether to issue an arrest warrant.
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