This article is designed to provide a brief overview of the issuance of arrest warrants by the international Criminal Court (ICC) in relation to the conflict in the territories illegally occupied by Israel,^[1] most specifically the Gaza Strip. This is not intended to be anything more than an overview. In the coming days, someone will produce a more comprehensive analysis.

Background

On 7 October 2023, the Islamic Resistance Movement, more commonly known as Hamas, launched attacks against Israel that resulted in around 1139 deaths and the taking of 250 hostages. These were a mix of civilians and Israel Defence Force (IDF) personnel. Israel responded with a massive military operation which is ongoing and has resulted in at least 45,000 deaths.^[2]  There is clearly fault on both sides, but rather more on Israel. Hamas is prescribed as a terrorist organisation by the US Department of State.^[3] It might therefore be reasonably expected that it would act like this. Israel is a sovereign state and should be held to a higher standard. The scale of Israel’s response, the fact that the majority of the people it has killed are civilians and not members of Hamas at all, suggest it is being held to a lower standard.

How the International Criminal Court (ICC) works

The ICC is an international court located in The Hague, the city in the Netherlands where so many international courts are to be found. It prosecutes individuals for high level violations of international law that generally occur in armed conflicts. It operates on the principle of complementarity, as described in Article 17 of the Rome Statute of the ICC. This means that the ICC only prosecutes when states are unable or unwilling to genuinely prosecute the matter domestically. This has been clearly demonstrated in the attitude of both parties. Israel claims it investigates crimes committed by the IDF but does not. They fall into the unwilling category. In the case of Palestine, they may fall into either or both categories. It is unlikely that Fatah, the political party that most governments regard as the legitimate government of Palestine would be willing to hand over someone who is seen as a freedom fighter. Even if they were willing, there is no prospect that they would be able to. The legitimate government of Palestine is technically the elected Palestinian National Authority (PNA). This is actually mostly dominated by Hamas, but in 2006 the PNA effectively split, with Hamas controlling Gaza and Fatah the West Bank. Since Hamas is a prescribed terrorist organisation, most governments prefer to deal with Fatah. This is sovereignty by default, rather than by democracy. Fatah may be a more congenial group to deal with, but they have no control over Hamas or Gaza.

The ICC only has jurisdiction over crimes listed in its Statute, and these include genocide, crimes against humanity and war crimes.^[4] The ICC can only exercise its jurisdiction when the crime(s) in question were committed by nationals of a state party or where the crime(s) in question were committed on the territory of a state party.^[5] A state party is one which has signed and ratified the Rome Statute. Israel has not, but Palestine has. This would mean both Hamas and Israel are subject to ICC jurisdiction.

Cases are brought by the Prosecutor of the ICC, either on referral from other state parties, from the UN Security Council or on their own initiative. The Gaza investigation was based on a referral from five States Parties: South Africa, Bangladesh, Bolivia (Plurinational State of), Comoros, and Djibouti.^[6] ICC arrest warrants are applied for by the Prosecutor, but have to be confirmed by the judges in a Pre-Trial Chamber.^[7] On 20 May 2024 the Prosecutor applied for arrest warrants against Mohammed Diab Ibrahim Al-Masri (known as Deif), the commander of the military wing of Hamas and two other individuals. These two others have subsequently been killed, so their arrest warrants were withdrawn. On the Israeli side, arrest warrants were issued against Israeli Prime Minister Benjamin Netanyahu, and former Israeli Minister of Defence Yoav Gallant (Gallant was fired from his post on 5 November 2024).

On 21 November 2024 the judges at the ICC confirmed these three arrest warrants. This was not a surprise as they pretty much always have done so in previous investigations. The Pre-Trial Chamber only has to believe there is a reasonable basis to proceed with an investigation, which is the same standard as the Prosecutor is held to. There is no requirement that the Pre-Trial Chamber impose a higher standard of proof or likelihood of conviction, and there is no policy based opt-out that the Pre-Trial Chamber can use to kill cases.

The charges from 20 May 2024

Mohammed Diab Ibrahim Al-Masri was charged with:

• Extermination as a crime against humanity, contrary to Article 7(1)(b) of the Rome Statute;
• Murder as a crime against humanity, contrary to Article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);
• Taking hostages as a war crime, contrary to Article 8(2)(c)(iii);
• Rape and other acts of sexual violence as crimes against humanity, contrary to Article 7(1)(g), and also as war crimes pursuant to Article 8(2)(e)(vi) in the context of captivity;
• Torture as a crime against humanity, contrary to Article 7(1)(f), and also as a war crime, contrary to Article 8(2)(c)(i), in the context of captivity;
• Other inhumane acts as a crime against humanity, contrary to Article 7(l)(k), in the context of captivity;
• Cruel treatment as a war crime contrary to Article 8(2)(c)(i), in the context of captivity; and
• Outrages upon personal dignity as a war crime, contrary to Article 8(2)(c)(ii), in the context of captivity.

These were confirmed by the Pre-Trial Chamber on 21 November 2024.

Benjamin Netanyahu and Yoav Gallant were charged with the following war crimes and crimes against humanity committed on the territory of the State of Palestine:

• Starvation of civilians as a method of warfare as a war crime contrary to Article 8(2)(b)(xxv) of the Statute;
• Wilfully causing great suffering, or serious injury to body or health contrary to Article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
• Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to Article 8(2)(c)(i);
• Intentionally directing attacks against a civilian population as a war crime contrary to 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 contrary to Article 7(1)(h);
• Other inhumane acts as crimes against humanity contrary to Article 7(1)(k).

Not all of these were confirmed by the Pre-Trial Chamber on 21 November 2024. The bench specifically held that extermination had not been demonstrated as likely at all. But there is a possible explanation for this: the Pre-Trial Chamber based its decision on evidence provided by the Prosecutor, which of course, could only run up to 20 May 2024. Evidence since then might indicate that extermination was met. And it is logically only a short leap from extermination as a crime against humanity to genocide.

Wilfully causing great suffering, or serious injury to body or health contrary to Article 8(2)(a)(iii), or cruel treatment as a war crime contrary to Article 8(2)(c)(i) was not demonstrated, although there is substantial overlap with the crimes against humanity that were demonstrated. Most curiously, murder as a war crime was not demonstrated, but it was as a crime against humanity. It is hard to see why this distinction has been drawn. The fact that some war crimes were demonstrated suggests there is little problem with triggering Article 8 of the Rome Statute and the Pre-Trial Chamber is clear that it regards this as an international armed conflict, so there is no issue with that.^[8] It may simply be an unspoken desire to focus the investigation on the relevant factual situation – it is a waste of resources to pursue the same objective twice. But that is a risky strategy and not one that many prosecutors around the world would habitually follow.

Israel’s challenges to jurisdiction

The determination of the Pre-Trial Chamber throws up a legal oddity in that the non-state party, Israel, who might have simply ignored the proceedings, decided to object to the Courts jurisdiction under Articles 19 and 18 of the Rome Statute. These were always weak challenges. The first seemed to be predicated on the delusion that Article 19(2) required Israel’s consent for the cases to go forward.^[9] Of course, this consent is not needed, since the basis for the Court’s jurisdiction is Palestine being a state party. The second challenge, under Article 18(1), was a request for the Prosecution to set out the parameters of the case again.^[10] This was recognised by the Pre-Trial Chamber as an attempt to delay proceedings. They noted that Israel had not requested a delay under Article 18(2), but was merely repeating the same objections and assertions that it was undertaking domestic investigations of alleged crimes.^[11] This was something that the Prosecutor had long since rejected.

Consequences

The three indicted individuals are in slightly different situations. Palestine should hand Mohammed Diab Ibrahim Al-Masri over to the ICC, but that relies on the Fatah side of the PNA being able to get access to him, which they cannot and probably would not if given the choice. Israel is not a state party to the ICC and so is not obliged to cooperate with the warrants. But most states in the world are state parties. This means that Benjamin Netanyahu and Yoav Gallant face the prospect of being arrested if they travel to a state party. This is not quite the restriction it seems: the only state that they might wish to regularly visit is the USA, and since it is not a state party either, they are safe. But it is symbolically important. It is effectively a signal that they are not wanted in most of Europe, that they are pariahs on large parts of the international stage. Together with the recent International Court of Justice’s Advisory Opinion of 19 July 2024 on the situation in Palestine,^[12] it is another nail in the coffin of the legitimacy of Israel’s war on Gaza.

References

[1] This has been established by the International Court of Justice’s Advisory Opinion of 19 July 2024, Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalemhttps://www.icj-cij.org/node/204176

[2] https://www.aljazeera.com/news/longform/2023/10/9/israel-hamas-war-in-maps-and-charts-live-tracker

[3] https://www.state.gov/foreign-terrorist-organizations/

[4] See Article 6, 7 and 8 of the Rome Statute

[5] See Article 12 of the Rome Statute

[6] See Article 13 of the Rome Statute. Also see https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine

[7] See Article 15 of the Rome Statute

[8] https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges

[9] https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a0ebd8.pdf at para 13

[10] https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a0ebd9.pdf at para 5

[11] https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a0ebd9.pdf at para 12

[12] Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, https://www.un.org/unispal/document/advisory-opinion-icj-19jul24/