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The prosecutor at the International Criminal Court (ICC) is seeking arrest warrants for top Hamas and Israeli figures on charges of war crimes and crimes against humanity over the October 7 attacks on Israel and the subsequent war in Gaza.
If approved by a panel of judges, the arrest warrants would be issued for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Warrants are also being sought for three top Hamas officials: Gaza leader Yahya Sinwar, political chief Ismail Haniyah, and Mohammed Diab Ibrahim al-Masri, the leader of Hamas’ armed wing, who is better known as Mohammed Deif.
Here’s what we know about the ICC cases and what they mean for Israel and Hamas.
How would an arrest warrant affect Netanyahu or Hamas leaders?
The decision to seek arrest warrants doesn’t immediately mean the individual is guilty, but is the first stage in a process that could lead to a lengthy trial.
If the court finds sufficient evidence of crimes, it can 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 takes place in which the court decides if there is enough evidence for the case to go to trial. Then there is a trial before three ICC judges, in which the prosecution must prove “beyond reasonable doubt” that the individual is guilty of the crimes.
Once a verdict passes, the charged individual may be sentenced to up to 30 years in prison. Under exceptional circumstances, a life sentence can also be given, the court says.
The ICC has so far issued arrest warrants against 42 people, 21 of whom have been detained with the help of member states.
“The immediate problem for Israeli officials under any ICC arrest warrant would be that the court’s 124 member states would be under a legal obligation to arrest such officials if they traveled to any of those 124 countries,” Chile Eboe-Osuji, a former ICC president, wrote this month in Foreign Policy magazine.
“That obligation should not be underestimated,” he said, adding that “just last year, Putin canceled his plans to attend the BRICS summit in South Africa, in the apparent light of Pretoria’s obligation to arrest him.”
Of Hamas leaders for whom arrest warrants are sought, two – Sinwar and Deif – are believed to be in Gaza, while Haniyah resides in Qatar, which is not a signatory to the Rome Statute.
What is the ICC and who can it indict?
Headquartered at The Hague in the Netherlands, the ICC was established in 2002 and is tasked with prosecuting individuals for crimes of genocide, crimes against humanity and war crimes.
Unlike the International Court of Justice (ICJ), the ICC is not an organ of the United Nations and does not prosecute states.
While the ICC is independent of the UN, it is endorsed by the UN’s General Assembly and maintains a cooperation agreement with the UN. When a case is not within the ICC’s jurisdiction, the UN Security Council can refer that case to the ICC, granting it jurisdiction.
The court can investigate alleged crimes committed on the territory, or by a national, of any 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’s prosecutor to launch an investigation.
The court has previously issued arrest warrants against high-ranking individuals, including former Sudanese president Omar al-Bashir, Saif Gadhafi, the son of the late Libyan leader Moammar Gadhafi, and most recently, Russian President Vladimir Putin.
Signatory states are obliged to apprehend those facing arrest warrants, but leaders have often sought to evade those warrants, restricting their freedom of movement.
The ICC does not have its own enforcement mechanism and has relied on countries’ support for arrests.
Does the ICC have jurisdiction over Israeli nationals?
Israel’s actions in Gaza were referred to the ICC by five countries – South Africa, Bangladesh, Bolivia, Comoros and Djibouti – in November, calling on the court to investigate the possible crimes of genocide, crimes against humanity and war crimes, among others, in the Palestinian territories, and asked it to determine whether “one or more specific persons should be charged.”
Israel does not recognize the jurisdiction of the ICC as it hasn’t signed the Rome Statute. But that doesn’t mean its citizens cannot be prosecuted by the court.
The court had already been 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 referred to the court by the Palestinian Authority, which adopted the ICC’s mandate in 2015 as the State of Palestine. The ICC concluded then that it has jurisdiction on the conflict and, “by majority, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.”
That investigation, ICC prosecutor Karim Khan said, “is ongoing and extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023.”
Remarks by Netanyahu this month pointed to anxiety about the ICC probe. Issuing arrest warrants for Israeli officials would leave an “indelible stain” on the edifice of international law and justice, Netanyahu said, adding that the ICC was “founded as a consequence of the Holocaust” and should not attempt to “undermine” Israel’s fundamental right to self-defense.
The ICC action comes as the International Court of Justice (ICJ), a different court in The Hague, considers a case brought by South Africa in which Israel is accused of committing genocide against Palestinians in the Gaza Strip. Israel recognizes the ICJ.
Israel’s war in Gaza, prompted by the October 7 Hamas attack that killed 1,200 people in Israel and took more than 250 others hostage, has dragged on for nearly eight months.
More than 35,000 people have been killed during Israel’s assault on Gaza, according to Palestinian authorities. Swathes of the territory have been reduced to rubble and more than half of its population of 2.3 million has been internally displaced. Famine has set in in parts of the strip.
Does the ICC have jurisdiction over Hamas?
Palestinian leaders signed up to the Rome Statute in 2015. As such, the ICC has jurisdiction over actors in Gaza and other Palestinian territories and by extension, over actors in those territories, including Hamas.
ICC prosecutor Khan confirmed this in October, saying alleged crimes committed by Israel in Gaza, or by Hamas in Israel, fall under the court’s jurisdiction, Reuters reported.
This means the court can indict Hamas leaders over possible crimes committed against both Israelis and Palestinians in the Gaza Strip.
Shelly Aviv Yeini, head of the international law department at the Israeli Hostage and Missing Families Forum, said the ICC could make Hamas accountable for crimes even if the state of Israel does not recognize the authority of the court.
ICC prosecutor Khan said Monday he is seeking the warrants “on the basis of evidence collected and examined by my office,” and thanked families of the hostages “for their courage in coming forward to provide their accounts.”
According to Article 15 of the ICC Rome Statue, any individual, group, or organization can file complaints of potential crimes to the court.
How have Hamas, Israel and others reacted to the ICC’s action?
Both Hamas and Israeli politicians denounced the ICC’s move.
Hamas said it was an attempt to “equate victims with aggressors by issuing arrest warrants against a number of Palestinian resistance leaders without legal basis.” The militant group said warrant requests for Netanyahu and Gallant had come “seven months late,” referring to the duration of Israel’s war in Gaza.
Israeli politicians across the political spectrum condemned the decision. Foreign Minister Israel Katz called it a “scandalous decision” and an “unrestrained frontal attack on the victims of October 7 and our 128 hostages in Gaza.”
The leader of the opposition, Yair Lapid, called it “a complete moral failure” and said Israel “cannot accept the outrageous comparison between Netanyahu and Sinwar.”
The right-wing minister for National Security, Itamar Ben Gvir, accused the ICC of antisemitism and called for an escalation of attacks against Hamas, while Finance Minister Bezalel Smotrich said: “We have not seen such a show of hypocrisy and hatred of Jews as that of the Hague Tribunal since Nazi propaganda.”
In the US, meanwhile, President Joe Biden has denounced the ICC prosecutor’s move, calling it “outrageous.”
“Let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” the president wrote. “We will always stand with Israel against threats to its security.”
Secretary of State Antony Blinken said the US “fundamentally rejects” the ICC prosecutor’s announcement and warned it could “jeopardize” efforts to reach a ceasefire and hostage release agreement.
“We reject the prosecutor’s equivalence of Israel with Hamas. It is shameful. Hamas is a brutal terrorist organization that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans,” Blinken said in a statement.
He questioned “the legitimacy and credibility of this investigation,” and said the US believed the ICC to have “no jurisdiction over this matter.”
The US is not a signatory to the Rome Statute.