The International Criminal Court's Quest for Justice: Examining the Netanyahu and Hamas Cases

After seven months of Israel’s offensive in Gaza, resulting in the deaths of 35,000 Palestinians, devastating the region, and triggering a humanitarian crisis, the Office of the Prosecutor of the International Criminal Court (ICC) has applied for arrest warrants for leaders of both Hamas and Israel, including Israeli Prime Minister Benjamin Netanyahu, on charges of alleged war crimes and crimes against humanity in the Gaza Strip and Israel.

"I remain deeply concerned about ongoing allegations and emerging evidence of international crimes occurring in Israel, Gaza, and the West Bank. Our investigation continues. My office is advancing multiple and interconnected additional lines of inquiry, including concerning reports of sexual violence during the October 7 attacks, and concerning the large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza," ICC Prosecutor Karim A.A. Khan stated.

This move has provoked strong reactions from both Israel and Hamas, who have criticized the Prosecutor and dismissed the charges of war crimes. Prime Minister Netanyahu condemned the legal action as "disgraceful and antisemitic," while Hamas claimed that the request "equates the victim with the executioner."

The Prosecutor’s application will now be reviewed by a pre-trial chamber of the ICC. A panel of three judges will decide whether to issue arrest warrants and allow the case to proceed. The timeline for this decision is not fixed and could take from a month to several months, based on previous cases.

The ICC’s Role and Investigation Process

The International Criminal Court, established in 2002, is the world’s first permanent international criminal court, prosecuting individuals for crimes under international law. The ICC investigates and tries individuals charged with genocide, war crimes, crimes against humanity, and aggression when local jurisdictions are unwilling or unable to prosecute. It differs from the International Court of Justice (ICJ), which deals with legal disputes between states. The ICC is governed by the Rome Statute, an international treaty adopted by the United Nations General Assembly in 1998. To join the ICC, countries must sign and ratify the Rome Statute with their legislatures' consent. Currently, 124 countries are ICC members, with African countries comprising the largest bloc. Palestine joined the Rome Statute in 2015 after the U.N. General Assembly granted it "non-member observer State" status, enabling the ICC to investigate alleged war crimes in Gaza and the West Bank. Israel and the United States are not ICC members.

The ICC has 18 judges responsible for ensuring fair trials, issuing arrest warrants and summons, and undertaking witness protection measures. The Office of the Prosecutor investigates situations where genocide, crimes against humanity, war crimes, and aggression appear to have been committed and prosecutes the accused. Both ICC judges and the Prosecutor serve fixed nine-year non-renewable terms. Karim A.A. Khan has been the ICC Prosecutor since 2021.

The Basis for ICC Warrants

Although Israel is not a member state and Hamas is a non-state actor, the ICC has taken up the Gaza case because the Palestinian armed group operates within an area under the Court’s purview. In 2021, the Court ruled that its jurisdiction extended to all Palestinian territories annexed by Israel after the June 1967 Arab-Israeli War, and began investigating possible war crimes committed by Israel in the occupied territories. This investigation is ongoing.

Regarding the current conflict, which began after Hamas's deadly attack on Israel on October 7, 2023, the Prosecutor has outlined charges against Prime Minister Netanyahu, Israeli Defence Minister Yoav Gallant, and Hamas leaders Yehia Sinwar, Mohammed Deif, and Ismail Haniyeh.

Accusations Against Hamas Leaders

The ICC Prosecutor has accused Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh of war crimes and crimes against humanity, including murder, taking hostages, extermination, rape, sexual violence, torturing captives, and outraging the personal dignity of captives. The Prosecutor’s statement asserts "reasonable grounds" to believe that Hamas leaders are "criminally responsible for the killing of hundreds of Israeli civilians in a widespread and systematic attack," and that hostages taken from Israel have been kept in inhumane conditions, with some subjected to sexual violence.

Allegations Against Israeli Leaders

The charges against Israeli leaders relate to the retaliatory actions of Israeli security forces in Gaza since October 8, 2023. Prime Minister Netanyahu and Defence Minister Gallant face allegations of war crimes and crimes against humanity, including murder, starving civilians as a method of warfare, causing suffering and serious injury, and intentionally directing attacks against civilians. The Prosecutor’s office claims to have evidence showing that Israel has "intentionally and systematically deprived" Gaza's civilian population of essential resources.

Potential Consequences

If the ICC pre-trial chamber judges find "reasonable grounds" to believe war crimes or crimes against humanity have been committed, arrest warrants will be issued for Netanyahu, other Israeli leaders, and Hamas leaders. However, the Court has no enforcement power and relies on its member states' law enforcement agencies for arrests. While this poses significant political implications, it also limits the accused's ability to travel to ICC member states without risking arrest.

If an accused is arrested, the Prosecutor must convince the pre-trial judges that there is sufficient evidence to proceed to trial. The ICC has issued 46 arrest warrants in 31 cases, with 21 individuals detained and 17 remaining at large. To date, the ICC has secured 10 convictions and four acquittals, with 12 investigations currently underway.