What would an arrest warrant mean for Israeli PM Netanyahu?

Israeli Prime Minister Benjamin Netanyahu addresses a ceremony marking Memorial Day for fallen soldiers of Israel's wars and victims of attacks, Jerusalem's Mount Herzl military cemetery, 13 May 2024
US President Joe Biden called the request made by the ICC's chief prosecutor Karim Khan for arrest warrants for Israeli Prime Minister Benjamin Netanyahu (pictured here) and his defence mnister "outrageous" and said there is no equivalence between Hamas and Israel (image: Gil Cohen-Magen/AP/picture alliance)

The International Criminal Court could issue an arrest warrant for Israeli Prime Minister Benjamin Netanyahu along with his defence minister and three Hamas leaders. If it does, what are the potential consequences?

By Jeannette Cwienk

The government in Tel Aviv must be looking with concern towards the International Criminal Court (ICC) in The Hague in the Netherlands.

The court's chief prosecutor, Karim Khan, has requested arrest warrants for Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. They are accused of war crimes and crimes against humanity in the Gaza Strip.

Khan also requested arrest warrants for three Hamas leaders – Yahya Sinwar, Mohammed Deif and Ismael Haniyeh – on similar charges related to the Islamist militant group's attacks on Israel on 7 October.

What type of criminal case could the ICC bring against Netanyahu?

The International Criminal Court only investigates individuals and only becomes active when a person is suspected of being responsible for one of four core crimes: genocide, war crimes, crimes against humanity or starting a war of aggression.

The ICC has in fact been looking into possible war crimes committed by Israel since 2021. At the same time, the court has also been investigating similar accusations levelled against Hamas fighters. Moreover, investigations are currently ongoing in regard to acts of violence committed by Israeli settlers in the West Bank.

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Recent developments in the war between Israel and Hamas are all being considered in that context. This most recent conflict began when militant Islamist Hamas fighters attacked southern Israel on 7 October 2023, killing some 1,200 people and abducting more than 240 back to Gaza. Hamas is considered a terrorist organisation by numerous Western nations, the EU and the US.

According to the Hamas-controlled Gaza Health Ministry, Israel's military response to the attack has killed more than 34,000 people, though these numbers cannot be independently verified.

When does the ICC have jurisdiction over Israeli citizens?

As a rule, the ICC may only take action when states cannot or will not pursue charges for the above-mentioned crimes at the national level. The current war makes it even more unlikely than usual that Israeli courts would initiate criminal proceedings against the head of its government, its ministers or army leadership. 

Furthermore, either a perpetrator's home country must also acknowledge the court – Israel does not – or the country in which a crime is alleged to have taken place must. That could well be the case here, as the Palestinian Territories are signatories to the Rome Statute of the International Criminal Court. Joining Israel in their rejection of the ICC are the US, China, Russia, India, almost all Arab states and Iran.

When none of the nations tied to the crimes are ICC Treaty signatories, then the task of contracting the ICC to investigate falls to the United Nations Security Council – as was the case, for instance, with Libya and Sudan.

What consequences would an ICC warrant have for Netanyahu?

To date, an arrest warrant has only been requested, not issued. Moreover, an arrest warrant is not a conviction. In the first instance, it is a sign that the ICC takes accusations levelled against an individual seriously enough to investigate them.

According to the ICC website, "judges will issue a warrant of arrest if it appears necessary to ensure that the person will actually appear at trial, that he or she will not obstruct or endanger the investigation or the court's proceedings, or to prevent the person from continuing to commit crimes."

However, as the ICC has no police force to arrest individuals against whom it has issued warrants, it is highly unlikely that members of the Israeli government will ever appear before judges in The Hague.  

Still, an arrest warrant would greatly limit the freedom of movement of Netanyahu and his associates – and that of Hamas's leaders – for each of the ICC treaty's 124 signatories are obliged to arrest individuals with outstanding warrants and to hand them over to the court.

That is why Russian President Vladimir Putin has been forced to avoid traveling to most international meetings since the ICC issued a warrant for his arrest over accusations that he is involved in the systematic abduction of Ukrainian children. Putin only travels directly to and from nations that do not recognise the legitimacy of the ICC.

Das Gebäude des Internationalen Strafgerichtshofs im Den Haager Stadtteil Scheveningen.
"To date, an arrest warrant has only been requested, not issued. Moreover, an arrest warrant is not a conviction. In the first instance, it is a sign that the ICC takes accusations levelled against an individual seriously enough to investigate them," writes Jeanette Cwienk (image: Klaus Rainer Krieger/reportandum/IMAGO)

How would such an arrest warrant be tied to accusations of genocide levelled at Israel?

The ICC's investigation should not be confused with another similar case pending against the state of Israel, namely the charge of genocide levelled against it by several nations. Among others, South Africa has spearheaded a case before the International Court of Justice (ICJ) based on the high number of casualties in Gaza. The ICJ is also based in The Hague, but does not investigate individuals nor does it issue arrest warrants, instead dealing exclusively with legal disputes between states.

In late January, the ICJ said it recognised the "risk of genocide in the Gaza Strip." Still, the ICJ refused to back an emergency motion filed by South Africa demanding Israel immediately cease all military operations in the enclave. As a result of that stance, the genocide case against Israel could potentially drag on for months or even years.

Jeanette Cwienk

© Deutsche Welle/Qantara.de 2024