Karim Khan KC
The Court is yet to decide whether to issue the warrants against Hamas and Israeli leaders.
The International Criminal Court (ICC) Prosecutor, Karim Khan KC, has applied to the Court for arrest warrants to be issued against Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim al-Masri (known as Dief) and Ismail Haniyeh for war crimes and crimes against humanity in Israel and Gaza during and after the attack on 7 October 2023. Arrest warrants are also sought against Israeli Prime Minister Benjamin Netanyahu and his defence minister, Yoav Gallant, in respect of war crimes and crimes against humanity in response to the Hamas attack.
What is the ICC?
The ICC is the first and only permanent international criminal court. It is a court of last resort aimed at deterring and ensuring accountability for the most serious crimes of concern to the international community – genocide, crimes against humanity, war crimes, and since 2018, the crime of aggression.
It is intended to be complementary to states’ domestic criminal justice systems: the ICC may only exercise its jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute international crimes itself.
The Court was set up in 1998 by treaty, the Rome Statute of the ICC. The Statute now has 124 states parties. Non-states parties (those that have not ratified the Rome Statute) include the United States, Israel, Russia, China, and India.
Whilst specific international tribunals had been set up to deal with the atrocities committed in the Former Yugoslavia, Rwanda, and other crisis situations, there had long been a call for a permanent international criminal court with wider scope than those tribunals.
The ICC considers cases against individuals and as such has to be distinguished from the International Court of Justice, which rules on disputes between states, such as the case brought by South Africa against Israel in January 2024 under the 1948 Genocide Convention.
History of the ICC’s engagement with the situation in Palestine
Following a preliminary examination which began in 2015, in 2021 the former ICC Prosecutor opened a formal investigation into possible crimes in Palestine. The current ICC Prosecutor is Karim Khan KC, a British barrister who was elected by the ICC states parties on 12 February 2021.
Following receipt of a referral from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti on 17 November 2023, the Prosecutor confirmed that its earlier investigation was ongoing and extends to the escalation of hostilities and violence since the attacks of 7 October 2023.
The alleged crimes
The arrest warrants the Prosecutor is seeking against the Hamas leaders concern the murder of hundreds of civilians on 7 October 2023 and the taking of at least 245 hostages. The charges include the crimes against humanity of extermination, murder, rape and torture, and the war crimes of hostage-taking, rape and other forms of sexual violence, torture, cruel treatment, and outrages upon personal dignity for acts committed against the hostages while in captivity.
The ICC considers cases against individuals and as such has to be distinguished from the International Court of Justice, which rules on disputes between states.
As regards Prime Minister Netanyahu and Defence Minister Gallant, the Prosecutor has stated that they formed ‘a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel’.
The charges that the application covers include the war crime of ‘intentionally using starvation of civilians as a method of warfare’ as well as various other war crimes and crimes against humanity associated with starvation and other acts of violence against the Gazan civilian population.
The Prosecutor’s decision in relation to all the arrest warrant applications has been informed by the advice of a panel of international law experts, which he convened to support the evidence review and legal analysis.
Image — The sign of the ICC is seen as people carrying Palestinian flags and banners gather in front of the Court, calling for an investigation into attacks on Gaza, on 18 October 2023 in The Hague, Netherlands. (Photo by Abdullah Asiran/Anadolu via Getty Images)
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Article second half
The ICC has jurisdiction in respect of the crimes alleged in the Prosecutor’s applications because in 2015 Palestine acceded to the Rome Statute as a state party to the ICC. On 22 May 2018, Palestine then self-referred the situation in Palestine since 13 June 2014 to the ICC Prosecutor, triggering an investigation into the matter.
Not all countries in the world recognise that Palestine is a state – the UK, for example, does not – but the majority of countries do. In 2021 the ICC ruled that Palestine is to be considered as a state party to the ICC Statute, for the purposes of this treaty. Even though Israel is not a party, under Article 12(2)(a) of the Statute, the ICC has jurisdiction over Israeli nationals if they commit crimes on the territory of a state party (in this case, Palestine).
What happens next
As envisaged in the Rome Statute, the Prosecutor has sought the approval of a pre-trial chamber of the ICC for arrest warrants. The chamber must issue a warrant if there are reasonable grounds to believe that a person has committed a crime within the jurisdiction of the Court and the arrest of that person is necessary (Art 58(1)). There are no time limits, and it is not possible to say when the Court will take a decision.
It remains contested whether heads of non-states parties, while in office, are entitled to personal immunity before international courts.
It also remains contested whether heads and other senior officials of non-states parties, while in office, are entitled to personal immunity before international courts. But the ICC has previously taken the view that they do not have immunity before the Court and other international courts and tribunals.
Will the cases ever come to trial?
The ICC cannot try individuals in absentia (Article 63) so custody of the accused is key for any prosecution to proceed to trial. The ICC relies on states’ cooperation for the enforcement of all its decisions, including the execution of arrest warrants. As with the arrest warrants issued in March 2023 against President Putin and his Commissioner for Children’s Rights, there may be doubts as to whether the named suspects will be arrested and tried, at least in the foreseeable future.
Even so, if the arrest warrants are issued, there will be consequences for the persons to whom the warrants apply. The 124 states parties to the Rome Statute will be obliged to arrest the suspects and transfer them to the Court should they ever come to their countries.
The 124 states parties to the Rome Statute will be obliged to arrest the suspects and transfer them to the Court should they ever come to their countries.
If the suspects are apprehended, it usually takes years to conduct trials concerning the gravest crimes of concern to the international community to the highest standards of international criminal justice, as foreseen by the Rome Statute.
The full life cycle of such a case is a long one. It includes the need to gather and preserve reliable evidence – particularly challenging amid active armed conflict situations – and which may require the consent of states to access territory.
Criminal justice principles need to be safeguarded, such as those concerning the presumption of innocence, non-retroactivity, and double jeopardy. The right to legal representation, the hearing of witnesses, ensuring strong victim participation, dealing with cases involving multiple perpetrators and a significant number of victims and incidents all add to the complexity, and therefore, the cost and length of an ICC trial.
Whether or not a trial takes place, and irrespective of the outcome of the application for the arrest warrants and any eventual trial, the ICC will continue to symbolise the international community’s resolve to end impunity for international crimes.