Australia / Israel Review

Understanding the ICC’s arrest warrant requests

What Happened?

On May 20, International Criminal Court (ICC) Prosecutor Karim Khan announced in a CNN interview that he had requested that the ICC issue arrest warrants for Israeli Prime Minister Binyamin Netanyahu and Defence Minister Yoav Gallant, as well as senior Hamas leaders.

In a statement released the same day, Khan alleged that Netanyahu and Gallant “bear criminal responsibility” for multiple alleged “war crimes and crimes against humanity” committed in the Gaza Strip, “from at least 8 October 2023,” including:

• “Starvation of civilians as a method of warfare as a war crime in violation of article 8(2)(b)(xxv) of the [Rome] Statute”;
• “Wilfully (sic) causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime in violation of article 8(2)(c)(i);”
• “Wilful killing (sic) contrary to article 8(2)(a)(i), or Murder as a war crime in violation of article 8(2)(c)(i);”
• “Intentionally directing attacks against a civilian population as a war crime in violation of articles 8(2)(b)(i), or 8(2)(e)(i);”
• “Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;”
• “Persecution as a crime against humanity in violation of article 7(1)(h);” and
• “Other inhumane acts as crimes against humanity in violation of article 7(1)(k).”

US President Joe Biden said in a statement that the ICC Prosecutor’s application for arrest warrants against the Israeli leaders is “outrageous”, and Secretary of State Antony Blinken said, “we reject the prosecutor’s equivalence of Israel with Hamas. It is shameful.”

What happens now 

Having been requested to do so by the ICC’s Office of the Prosecutor, the Pre-Trial Chamber, a select panel of three judges from the ICC’s 18-judge panel, will now decide whether to issue an arrest warrant. The ICC’s procedure requires, as Israel’s Ynet news outlet noted in a May 20 article, the panel “to review the prosecutor’s requests and may involve requesting additional evidence.” It will consider whether the Court has jurisdiction, bearing in mind the principle of complementarity (see below).

• An Israeli legal scholar cited by Ynetnews stated that the panel will now “assess whether there are reasonable grounds to believe the crimes were committed and whether the arrest warrant is necessary for the judicial process. The suspects do not have the right to representation in the judicial approval process which, based on past experience, may take from several days to a few weeks.”
• This standard for issuing arrest warrants is analogous to the US criminal law standard of probable cause: Is there objectively reasonable information that supports the allegations proposed?
• Like probable cause to arrest, this is a relatively low standard and a burden not difficult to satisfy. Notably, it is permissible to rely on inferences based on circumstantial evidence (just as it is for satisfying any burden of proof).
• It is highly unlikely the Office of the Prosecutor would have sought these arrest authorisations unless it was confident that the information available will satisfy this burden.
• This is likely why Ynetnews reported that, “in Israel, it is anticipated that the Pre-Trial Chamber will approve Khan’s request and issue the arrest warrants.”

Why Is It Important?

The ICC Prosecutor’s request for the arrest warrants of Netanyahu and Gallant is troubling for several reasons. First, it seems based primarily on the adverse effects of hostilities to support the inference of the criminal intent to kill, starve, or otherwise harm civilians necessary to prove the alleged violations. Second, it contributes to the perception of equality of condemnation between Israel and Hamas, a phenomenon that seems to have gained consistent momentum since October 7, but one that should play no role in the assessment of criminal responsibility. Third, it gives rise to the risk that armed forces and national security officials of states that have chosen not to join the ICC – most notably the United States – are now exposed to its jurisdiction when compelled to engage in military operations in the territory of a member state or party to the treaty.

Khan’s request also implicates one of the fundamental principles on which the ICC was founded, that of complementarity – the principle that the ICC’s involvement is intended to be limited to situations of genuine impunity – where there is no national well-functioning and credible legal system to impose accountability for serious violations of international law. Hamas obviously falls into this category; Israel does not.

These considerations undoubtedly inspired the swift and aggressive condemnation of this move by President Biden and Secretary Blinken. There is also no question that this move, even if it does not result in arrest warrants or convictions, will have a profound “naming and shaming” impact on Israel.

• Challenges to Israel’s right to self-defence in the global court of public opinion benefit Hamas by helping accumulate world pressure on Israel to prematurely terminate its efforts to eliminate Hamas as a military threat and sabotage its global standing. By requesting arrest warrants for both Israeli and Hamas leaders, Khan has also obfuscated the true facts of the war, namely that Hamas is not only the aggressor but has consistently sought to impede Israel’s humanitarian efforts in Gaza.
• Given the ICC’s aura of legitimacy in much of the world, even requesting arrest warrants for Israeli officials further emboldens Hamas to continue to deliberately hide behind civilians, expose civilians to mortal risks of hostilities, and refuse hostage deals and instead wait for public and political pressure to save the terrorist group from defeat.

The ICC’s claim to be investigating both sides of the war presupposes some degree of moral or legal equivalency between Hamas’ massacre on October 7 and Israel’s lawful military response in legitimate self-defence and to free the hostages.

• Israeli Opposition Leader Yair Lapid observed on May 20 that Khan’s decision represented a “complete moral failure” and noted the implicit “outrageous comparison between Netanyahu and [Hamas’ leader in Gaza, Yahya] Sinwar.”

The ICC is recognised as a legitimate and authoritative institution by nearly 125 countries. ICC member states may feel obligated to comply with ICC arrest warrants issued against individuals who come into member states’ jurisdiction.

• Outstanding ICC arrest warrants rarely expire and are generally only rescinded upon the death of a suspect, as occurred when Libyan leader Muammar Gaddafi was killed in 2011 prior to his arrest warrant being served.
• Though the Pre-Trial Chamber is authorised to cancel arrest warrants, in practice, this has not happened while a suspect is still alive. This means that Netanyahu and Gallant could be liable for arrest abroad long after ending their service in government.

Issuing ICC arrest warrants for Israeli officials – and potentially against US officials in the future – undermines the credibility of a Court that should be singularly focused on pursuing only the most culpable war criminals. It may also have a chilling effect on the willingness of the United States to employ force for important reasons in order to avoid exposing US personnel to prosecutorial risk.

The ICC’s investigation into Israeli officials violates a central premise of the Rome Statute that established the ICC, namely complementarity, or the principle that the ICC serves as a complement to – not a substitute for – countries’ own sovereign judicial systems. As Khan stated recently, “the principle of complementarity [is] at the heart of the Rome Statute.”

• The complementary principle, as interpreted by legal scholars, is intended to limit the ICC’s involvement to situations where impunity for serious violations of international law is the result of the absence of a well-functioning national legal system to pursue accountability, such as for Sudan during the Darfur genocide.
• The Rome Statute designates the Court as having jurisdiction “limited to the most serious crimes of international concern,” and specifies that the ICC is to “be complementary to”, rather than supercede, countries’ sovereign criminal jurisdictions.
• However, as Khan himself acknowledged, Israel has a “robust system intended to ensure compliance with international humanitarian law.”
• With hundreds of ongoing investigations into possible criminal acts by IDF personnel, an independent Attorney-General, Military Advocate General, and judiciary, and a system that has in the past tried and convicted former prime ministers and presidents, and has placed the current PM on trial, Israel is the antithesis of a nation that is unable or unwilling to hold its own citizens accountable for international crimes.
• Military legal expert LTC Geoffrey Corn, USA (ret.) has noted that “the excellence of [Israel’s] legal corps, or Military Advocate General’s Corps, is widely recognised among military legal peers throughout the world.”

In addition, a number of the allegations the ICC’s Chief Prosecutor has levied against Israel seem speculative and unfounded by anything other than the effects of hostilities, which are not necessarily indicative of the required criminal intent.

• Alleging that Israel has engaged in methods of warfare intended to cause starvation of the civilian population, deprive civilians of essential resources, or intentionally direct attacks against civilians overlooks the extensive measures Israel has taken to facilitate humanitarian assistance into the Gaza Strip – including over 425,000 tons worth of food – and move civilians out of combat zones.
• From the inception of operations in Gaza, Israel has utilised a specialised entity of the IDF to assess essential humanitarian needs and ensure those needs have been met.
• In the first month of the war, Israel airdropped over 1.5 million pamphlets, made nearly 6 million calls, and sent nearly 4.4 million texts to Gazans warning them to evacuate from areas that were soon to become combat zones.
• The IDF has subjected its personnel to substantial tactical risk by attempting to surge food, water, fuel, and medical equipment to hospitals in active combat zones. As JINSA has noted, in the first three months of the war Israel “facilitated the entry of approximately 6,500 tons of medical supplies and 43 ambulances into Gaza.”

Pursuing arrest warrants for Netanyahu and Gallant based on dubious grounds also devalues the ICC’s legitimate arrest warrants, including those for Russia’s President Vladimir Putin and other senior Russian officials, for Russia’s war crimes against Ukraine.

Jonathan Ruhe is Director of Foreign Policy at the Jewish Institute for the National Security of America (JINSA). Yoni Tobin is a Policy Analyst at JINSA. © JINSA (jinsa.org), reprinted by permission, all rights reserved.