On May 20, the Prosecutor of the International Criminal Court (ICC), Karim Khan, made public his application to a pre-trial chamber of the ICC to issue arrest warrants against five individuals linked to the conflict in Gaza. The five are Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minister Yoav Gallant, and three Hamas leaders, including Yahya Sinwar, the leader of the outfit. The announcement caused a furore, which could have possible adverse consequences for the ICC. But in all the bluster and fury, it is important to ask what the legal basis for this request is, and the implications.
The ICC was established by the Rome Statute, a treaty negotiated more than 20 years ago, to ensure legal redress for grave international crimes, including genocide, war crimes, and crimes against humanity. The ICC builds on the legal legacies and jurisprudence of international courts before it, including the ad hoc United Nations tribunals for Rwanda and the former Yugoslavia, in order to address individual criminal responsibility. It is not a determination of culpability of a nation or group, but rather of individuals.
The nature of crimesThe Prosecutor alleges in his statement that Hamas officials are responsible for an array of war crimes and crimes against humanity including murder, extermination, taking hostages, rape and sexual violence, torture, cruel treatment, outrages upon personal dignity, and other inhumane acts. These are allegations that stem from Hamas’ attacks against Israel on October 7, 2023. The Prosecutor’s case against the Israeli officials are that since October 8, 2023, they bear responsibility for war crimes and crimes against humanity such as persecution, extermination and/or murder including deaths caused by starvation, starvation of civilians as a method of warfare, wilfully causing great suffering, or serious injury to body or health, wilfully killing, intentionally directing attacks against a civilian population, and other inhumane acts. These applications for warrants are supported by an independent panel of experts.
Based on the Rome Statute and the procedures of the ICC, the judges of the pre-trial chamber must now make a decision regarding whether to issue the arrest warrants requested. This determination is based on the evidence that the Prosecutor submits to the judges. To issue the warrants, the judges must be satisfied that there are “reasonable grounds to believe” that the individuals have committed a crime, within the jurisdiction of the court.
An argument against the Prosecutor’s actions is that Israel is not a state party to the Rome Statute and so the ICC cannot exercise jurisdiction over it. This is incorrect. There are other situations where the ICC has exercised jurisdiction over a non-state party. For instance, in Bangladesh/Myanmar, the court held that even though Myanmar is not a state party, the court has jurisdiction by virtue of particular crimes committed on the territory of a state party (Bangladesh). Another example is the arrest warrant issued against President Vladimir Putin, when Russia is not a state party. According to the ICC statute, the court has jurisdiction over crimes committed in the territory of a state party or a state which has accepted its jurisdiction, and Ukraine falls under this category. The court asserted jurisdiction which would apply to occupied and annexed territories. It is worth noting that this decision was met with acclaim by many states in the West, in contrast to the current situation regarding Israel.
Specifically addressing the jurisdiction of the court in this instance, a pre-trial chamber in 2021 affirmed that the ICC can exercise criminal jurisdiction in the Situation in the State of Palestine, and that this scope includes Gaza, the West Bank, and East Jerusalem. This would include any actions on and since October 7 last year.
An immediate consequence of a positive decision on these warrants relates to obligations on all states that have ratified the Rome Statute to cooperate on matters, including arrest. When arrest warrants by the ICC were issued in relation to Omar al-Bashir of Sudan, states failed to follow through on their obligations. When Mr. Bashir was in South Africa for a summit, legal proceedings were brought to initiate the arrest in the country. However, South Africa decided not to arrest Mr. Bashir, a decision that was excoriated by the Supreme Court of Appeal of South Africa as well as judges of the ICC. While this was a failure to arrest, it is worth noting that the arrest warrant hampers scope of activity and remains an obligation for over a hundred states that are a party to the Rome Statute.
It is also important to note that there are separate, distinct proceedings before another court in the Hague, the International Court of Justice (ICJ). There, South Africa is alleging violations of the Genocide Convention by Israel with regard to its actions in Gaza. The ICJ has already issued decisions indicating provisional measures, akin to injunctions in domestic law. Proceedings at the ICJ are to determine the legal responsibility of a state and are not about individual criminally responsibility.
The decision by the ICC Prosecutor is of great significance. International law is being severely tested in this crisis. While this step may not be an immediate panacea, it signals that there is value in the rule of law, in the idea that no one should be able to commit international crimes with impunity, and that accountability should not be a mere mirage.
Priya Pillai is an international lawyer.
