The story so far: After seven months of Israel’s offensive in Gaza, which has killed 35,000 Palestinians, devastated the region and triggered a humanitarian crisis, the Office of the Prosecutor of the International Criminal Court (ICC) on Monday applied for arrest warrants for Hamas and Israel leaders, including Israeli Prime Minister Benjamin Netanyahu, over alleged war crimes and crimes against humanity in the Gaza Strip and Israel.

“I remain deeply concerned about ongoing allegations and emerging evidence of international crimes occurring in Israel, Gaza and the West Bank. Our investigation continues. My office is advancing multiple and interconnected additional lines of inquiry, including concerning reports of sexual violence during the October 7 attacks, and concerning the large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza,” ICC Prosecutor Karim A.A. Khan said in a statement.

The move has elicited a strong reaction from both Israel and Hamas, who have criticised the Prosecutor and dismissed the charges of war crimes. While PM Netanyahu has condemned the legal step as “disgraceful and antisemitic,” Hamas has stated that the request “equates the victim with the executioner.”

The Prosecutor’s application will be next placed before a pre-trial chamber of the ICC. A panel of three judges of the pre-trial chamber will decide whether to issue arrest warrants and allow the case to proceed. While there is no deadline for judges to arrive at a decision, this can take anywhere between a month to several months, as seen in previous cases.

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What is the ICC’s role and how does it investigate?

The International Criminal Court is the world’s first permanent international criminal court established in 2002 to prosecute individuals for crimes under international law. As a “court of last resort,” the ICC investigates and tries individuals charged with genocide, war crimes, crimes against humanity and aggression when local jurisdictions are unwilling or fail to prosecute.

The ICC is different from the International Court of Justice (ICJ) which deals with legal disputes between states. It is governed by an international treaty called the Rome Statute which was adopted by the United Nations General Assembly in 1998 in Rome, Italy. Countries must sign the Rome Statute and ratify it with the consent of their legislatures to join the ICC. Currently, 124 countries are members of the ICC, with African countries making up the largest bloc. Notably, Palestine acceded to the Rome Statute in 2015 after the U.N. General Assembly accorded it the status of “non-member observer State.” This means that the ICC has the criminal jurisdiction to investigate alleged war crimes committed in Gaza and the West Bank. Israel and the United States, meanwhile, are not members of the Court.

The ICC has 18 judges whose primary responsibility is to ensure fair trials and render decisions, besides issuing arrest warrants and summons, and undertaking witness protection measures. Under the Court’s jurisdiction, the Office of the Prosecutor examines situations where genocide, crimes against humanity, war crimes and aggression appear to have been committed. and carries out investigations and prosecutions against the accused. Both the ICC judges and the Prosecutor have a fixed non-renewable term of nine years. The current Prosecutor, Karim A.A. Khan, has held the office since 2021. 

After the Prosecutor receives a complaint regarding alleged crimes, preliminary examinations are carried out to ascertain if there is a reasonable basis to initiate an investigation. The Prosecutor typically sends missions to the countries concerned to collect and examine evidence. Based on the evidence, the Prosecutor requests the judges to issue a warrant of arrest or a summons to appear. Once issued, even in cases where arrests are delayed, arrest warrants are valid for life.

Why has the ICC Prosecutor requested warrants?

Although Israel is not a member state and Hamas is a non-state actor, the Court has taken up the case on the situation in Gaza because the Palestinian armed group operates from within an area under the Court’s purview. In 2021, the Court ruled that its jurisdiction extended to all the Palestinian territories annexed by Israel after the June 1967 Arab-Israeli War. as it said it would order an investigation into possible war crimes committed by Israel in the occupied territory. This investigation is in progress. 

With respect to the ongoing war which broke out after Hamas launched a deadly attack on Israel on October 7, 2023, the Prosecutor has outlined charges against Mr. Netanyahu and Israeli Defence Minister Yoav Gallant and Hamas leaders Yehia Sinwar, Mohammed Deif and Ismail Haniyeh.

HAMAS LEADERS

The ICC Prosecutor has accused Hamas chief Yahya Sinwar, Hamas’s military wing head Mohammed Diab Ibrahim al-Masri and its political bureau chairman Ismail Haniyeh of war crimes and crimes against humanity, including murder, taking hostages, extermination, rape and sexual violence, torturing captives, and outraging the personal dignity of those in its captivity.

In a statement, the Prosecutor says it has “reasonable grounds” to believe that Hamas leaders are “criminally responsible for the killing of hundreds of Israeli civilians in a “widespread and systematic attack” perpetrated by Hamas and other armed groups last year and taking hostages. “ …there are reasonable grounds to believe that hostages taken from Israel have been kept in inhumane conditions and that some have been subject to sexual violence, including rape, while being held in captivity,” it adds.

ISRAELI LEADERS

Mr. Khan’s allegations against Israeli leaders are related to the retaliatory action of Israeli security forces in Gaza since October 8, 2023. Charges of war crimes and crimes against humanity against PM Netanyahu and Defence Minister Gallant include murder, starving civilians as a method of warfare, wilfully causing suffering and serious injury, and intentionally directing attacks against a civilian population and extermination. 

Mentioning how Israel imposed a “total siege” over Gaza, the statement mentions that the Office of the Prosecutor has evidence in the form of video, photo, audio and satellite imagery which shows that Israel has “intentionally and systematically deprived” the civilian population in Gaza of objects indispensable to human survival.

“… these acts were committed as part of 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,” it adds.

The Prosecutor has said the effects of the use of starvation as a method of warfare and collective punishment against the civilian population of Gaza are “acute, visible and widely known.”

“They include malnutrition, dehydration, profound suffering and an increasing number of deaths among the Palestinian population, including babies, other children, and women,” his statement reads.

“Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to the body or health of the civilian population – are criminal,” Mr. Khan has said.

Will Israel PM Netanyahu be arrested if warrants are issued?

If the judges in the ICC’s pre-trial chamber determine that there are “reasonable grounds” to believe war crimes or crimes against humanity have been committed in Gaza and Israel, arrest warrants will be issued against Mr. Netanyahu, other Israeli leaders and Hamas leaders, as sought by the Prosecutor. 

The accused don’t face an immediate risk of prosecution as the Court has no means to enforce an arrest as it relies on the law enforcement agencies of its members for arrests. However, the Rome Statute and jurisprudence from past cases oblige ICC signatories to arrest and extradite the accused to the Hague if they set foot in their territory. Besides political implications, this also translates to the threat of arrest, which will make it difficult for the accused to travel abroad to any of the ICC member states.

In case an accused is arrested, the Prosecutor must convince the pre-trial judges that there is sufficient evidence to commit the case to trial. The case goes to trial only if the judges confirm the charges.

Notably, the ICC has issued 46 arrest warrants in the past in 31 cases before the Court. In these cases, 21 people were detained and produced before the ICC while 17 remain at large. The judges have issued 10 convictions and four acquittals. At present, 12 investigations are underway.