May 31, 2024


đź“° FEATURE STORY

Does seeking arrest warrants in the ICC against Israel and Hamas leaders set a good precedent?

(Image credit: OSeveno, CC BY-SA 4.0, via Wikimedia Commons)

The war in Gaza rages on as both sides seem destined to stand their ground and not relent in any way. Israel has continued its bombardment of Palestinian territories, and Hamas still hasn’t released many of the hostages. It’s become a divisive issue among countries on a conflict that has ebbed and flowed over decades.

The chief prosecutor at the International International Criminal Court (ICC) has applied to the pre-trial chamber for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defence Minister Yoav Gallant, and three Hamas leaders for war crimes and crimes against humanity. The announcement has received mixed reactions. However, will this latest development have any bearing on how such warrants are issued in the future and how countries deal with conflicts?

Context

A few basics first. The ICC is the first and only permanent international criminal court. It’s the last resort to deter and ensure accountability for serious crimes like genocide, war crimes, and crimes against humanity. It was set up in 1998 by the Rome Statute, which now has 124 parties. Interestingly, the non-state parties, i.e., those who haven’t ratified, include the US, Israel, Russia, China, and India.

Previously, special international tribunals were set up to deal with crimes committed, like in the former Yugoslavia and Rwanda. The ICC tries cases against individuals. It’s different from the International Court of Justice (ICJ), which rules on disputes between nations. One recent example is South Africa’s case against Israel this January under the 1948 Genocide Convention for its military actions in Gaza.

This isn’t the first time the ICC has dealt with this conflict. A preliminary inquiry began in 2015. Following that, the ICC Prosecutor opened a formal investigation into possible crimes in Palestine. In November, Prosecutor Karim Khan stated that the investigation was ongoing, and the court received referrals from Bangladesh, Bolivia, and Djibouti. It also included the October 7 attack and the aftermath.

The charges against Hamas include the murder of hundreds of civilians, taking at least 245 hostages, torture, rape, and other forms of sexual violence. Concerning Netanyahu and Gallant, Khan said they used starvation as a method of war and other violent acts against the civilian population in Gaza as retaliation.

The decision to apply for the warrants was based on advice from a panel of international legal experts that Khan convened to review evidence and provide legal analysis. Normally, an announcement like this doesn’t happen until the pre-trial chamber has issued the warrants. Perhaps the prosecutor’s office is looking to impact the ongoing conflict with this announcement to bring the sides together in hopes of a ceasefire. Some have also stated that Khan hasn’t implied equivalence between both sides and that the political effects are a separate question and shouldn’t be equated with the peace vs justice debate.

An important thing to note is that not all countries recognise Palestine as a state. Most do, but not all. In 2021, the ICC ruled that Palestine should be considered a state and party to the statute. While Israel isn’t, the ICC still has jurisdiction over its nationals if they commit crimes on or against a state party.

With that in mind, do these warrants set a good precedent for how future conflicts will be treated by the ICC and countries?

VIEW: A good barometer

Khan’s decision to seek these warrants is unprecedented since it’s the first time the prosecutor’s office has brought charges against a head of state supported by Western countries. As Khan put it, this is the message – “no foot soldier, no commander, no civilian, no one, can act with impunity”. Given how well-documented this conflict has become, the prosecutor’s office should be confident that the pre-trial chamber will issue the warrants.

The reactions from Israel and its allies, including the United States, have been predictable. However, some argue it’s the wrong approach. That’s because the US hasn’t suggested the charges are baseless and has even criticised the Netanyahu government for some of its actions. The court is in a powerful position here, knowing it would be criticised, but rightly went ahead with its work.

The ICC has sent a clear message on the need to distinguish between norms and barbarism. Institutions like the ICC are necessary to enforce the norms. Irrespective of how these warrants are dealt with, it’s a good sign that the ICC exists and has acted independently against leaders and states propagating wars of aggression in this conflict. Given the brutality from both sides, the path towards getting the warrants has provided a necessary balance in the pursuit of justice.

COUNTERVIEW: Amounts to nothing

These warrants, if anything, might complicate things geopolitically for Israel and other countries. It likely won’t amount to much since the warrants won’t be executed. None of the accused will be arrested, and a trial won’t happen since the ICC doesn’t try people in absentia. Netanyahu or the Hamas leaders obviously won’t surrender. Also, since Israel and the US aren’t signatories to the statute, Netanyahu and Gallant could travel to the US without fear of arrest.

As far as Hamas is concerned, it’s basically the same thing. One of their leaders named in the warrant doesn’t even live in Palestine. He’s in Qatar, which isn’t an ICC member state. The other two are reportedly in hiding in Gaza and have a higher risk of being killed in the conflict. The ICC doesn’t have a police force and relies on member nations to execute warrants. However, the ICC has only 124 state parties, while the UN has 193 members.

The announcements of these warrant applications could also backfire on the ICC and other conflicts. It has been proven before that such warrants don’t end wars. One commentator said the opposite happens – sides double down since the ICC has thrown amnesty out the window. When a warrant was sought against Russian President Vladimir Putin for his invasion of Ukraine, it didn’t make any difference. Putin continued with his military actions. Any hopes for a ceasefire now between Israel and Hamas have diminished as the former’s offensive in Rafah continues.

Reference Links:

  • The ICC Prosecutor’s applications for arrest warrants explained – Chatham House
  • ICC arrest warrants put Israel’s Western allies at a crossroads – The New Arab
  • Don’t Go to War With the ICC – Foreign Affairs
  • ICC arrest warrants in Israel-Hamas war are a major test for international justice – The Conversation
  • ICC Cases Against Israel and Hamas: A Preliminary Assessment – Arab Center DC
  • ICC arrest warrants would be an anti-colonial step – The Guardian
  • Why ICC arrest warrants matter, even if Israel and Hamas leaders evade them – Vox
  • ICC proceedings against Israel, Hamas are a key test of how the world deals with wars – The Print
  • Netanyahu case will make or break the ICC – Politico

What is your opinion on this?
(Only subscribers can participate in polls)

a) Seeking arrest warrants in the ICC against Israel and Hamas leaders sets a good precedent.

b) Seeking arrest warrants in the ICC against Israel and Hamas leaders sets a bad precedent.


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