The Worldwide Legal Court docket issued arrest warrants on Nov. 21, 2024, for Israeli Prime Minister Benjamin Netanyahu, his former protection minister and one main Hamas official. These named within the motion are accused of conflict crimes and crimes towards humanity regarding the Oct. 7, 2023, assault by the Palestinian militant group and the next ongoing siege and bombing of Gaza by the Israel Protection Forces.
In Could 2024, ICC Chief Prosecutor Karim Khan sought arrest warrants for 3 senior Hamas leaders, accusing them of extermination, homicide, taking hostages and committing rape and different acts of sexual violence. Two of these Hamas leaders, Yahya Sinwar and Ismail Haniyeh, have since been killed by Israeli forces. It has been reported {that a} third chief, Mohammed Deif, had additionally been killed by Israeli forces in August. However the ICC Pre-Trial Chamber nonetheless issued an arrest warrant for Deif, explaining that his dying has not been confirmed.
Allegations towards Netanyahu and former protection minister Yoav Gallant embrace ravenous Palestinians in Gaza, “intentionally directing attacks against a civilian population,” in addition to persecution and “willful killing.”
The ICC, an unbiased tribunal primarily based in The Hague, Netherlands, prosecutes genocide, crimes towards humanity and conflict crimes – the latter being a authorized time period that features attacking civilians and committing different wartime violations, comparable to blocking humanitarian help.
The arrest warrants, which the Israeli authorities in an announcement rejected “with disgust,” imply, in idea, that these accused might face arrest ought to they journey to one of many ICC’s 124 member states. Israel isn’t a member state of the courtroom, however the “State of Palestine” has been a celebration to the Rome Statute, which arrange the courtroom, since 2015.
As a scholar of human rights and worldwide courts, I feel you will need to emphasize that the arrest warrants don’t imply that these accused will essentially face arrest or trial.
The ICC, according to different up to date worldwide felony tribunals, lack any enforcement powers of their very own. Meaning within the Israel-Hamas scenario, the ICC could by no means be capable of arrest suspects or carry them to trial.
These worldwide courts subsequently have a blended file of holding senior political and army leaders accountable for his or her crimes. It’s provided that and when political leaders fall from energy that there’s any likelihood that their governments will arrest and hand them over to worldwide courts for prosecution.
Palestinians stroll amid the rubble of destroyed buildings in Nuseirat, Gaza, on April 29, 2024.
AFP by way of Getty Pictures
The problem for worldwide courts
Take the instance of Russian President Vladimir Putin, who, since March 2023, has defied an ICC arrest warrant for allegedly committing conflict crimes through the Ukraine conflict. So long as Putin stays in energy, there may be virtually no prospect of his arrest.
Worldwide felony tribunals such because the ICC have a twofold downside. First, these tribunals shouldn’t have an precise worldwide police pressure to hold out arrests.
Second, governments implicated of their leaders’ alleged crimes usually attempt to impede worldwide tribunals by not turning over suspects and by looking for to assault the tribunals as biased.
The enforcement downside, as my scholarship has proven, can enable the leaders of a robust nation comparable to Israel or an entity like Hamas to evade arrest warrants from worldwide courts – so long as the suspects stay inside their nation or territory.
As a result of Israel isn’t an ICC member state, it by no means agreed to abide by courtroom rulings or arrest warrants and doesn’t in any other case settle for the courtroom’s jurisdiction. The U.S. and different nations, together with Qatar, which in recent times has hosted a variety of senior Hamas members, are additionally not ICC members and don’t face a authorized obligation to make arrests.
As such, Netanyahu and Gallant might nonetheless journey to fulfill with U.S. leaders in Washington, D.C., with out worry of arrest. However they may now doubtless keep away from journey to European Union nations, all of that are a part of the ICC and can be obliged to arrest Netanyahu.
All of this may increasingly additionally contribute to Israel’s additional worldwide isolation and strain over its wartime conduct.
Issuing arrest warrants for the Hamas leaders additionally threatens to stigmatize Hamas internationally.
The U.S., which at occasions has strongly opposed the ICC however has additionally supported the courtroom on an advert hoc foundation, as has occurred within the ICC’s Ukraine scenario, has beforehand warned that issuing arrest warrants for Israeli leaders might compromise a possible cease-fire settlement between Israel and Hamas.
Milosevic’s fall from energy
Not all arrest warrants fail.
The trial of Serbian chief Slobodan Milosevic within the mid-2000s illustrates how worldwide tribunals may be capable of prosecute alleged conflict criminals as soon as they fall from energy.
In 1993, because the conflict in Bosnia was nonetheless being fought, the United Nations Safety Council arrange a particular courtroom, referred to as the Worldwide Legal Tribunal for the previous Yugoslavia, to handle crimes dedicated through the regional wars.
This courtroom indicted Serbian nationalist chief Slobodan Milosevic for conflict crimes and crimes towards humanity in 1999 through the ongoing Kosovo conflict. Milosevic’s alleged crimes in Kosovo included a large ethnic-cleansing marketing campaign waged towards Kosovar Albanians, the biggest ethnic group there. Milosevic later confronted extra costs for alleged crimes in Bosnia and Croatia.
However Milosevic was nonetheless in energy when the indictment was issued, and his authorities shielded him from arrest. Milosevic misplaced a presidential election in late September 2000 and, after widespread protests, stepped down.
The U.S. promised the brand new democratic authorities in place in Serbia substantial financial help to hurry its postwar restoration. This helped immediate the Serbian authorities to arrest Milosevic after which switch him to the the worldwide tribunal in June 2001.
Relations and supporters of hostages held by Palestinian militants in Gaza chant throughout an illustration calling for his or her launch on April 27, 2024.
Jack Guez/AFP by way of Getty Pictures
A possible playbook for Israeli leaders
Milosevic’s trial was launched in February 2002, however he died in jail in 2006, shortly earlier than the top of his trial.
His trial nonetheless reveals that underneath particular circumstances, worldwide courts can overcome their lack of enforcement powers and produce high-level suspects to trial. Worldwide political strain and incentives usually serve an important function on this course of.
So long as any political and army leaders going through potential arrest stay in energy, it’s doubtless that no quantity of political strain or guarantees will persuade Israel, Qatar or different nations to cooperate with a global courtroom and switch over any leaders, if they’re indicted.
And historical past additionally reveals that even when Hamas leaders are overthrown or Israeli leaders lose elections, there’s no assure that potential suspects will ever stand trial on the ICC.
There may be broad public opposition to the ICC in Israel.
Although Khas, the ICC’s chief prosecutor, has additionally sought to prosecute Hamas leaders for the atrocities of Oct. 7, Israeli politicians have reacted to the courtroom’s arrest warrants with outrage.
Furthermore, not less than within the quick time period, it’s extremely unlikely that the U.S., which introduced that it “fundamentally rejects” the ICC’s actions towards Netanyahu and Gallant, will apply the kind of strain towards its shut ally, Israel, that it efficiently utilized on Serbia for Milosevic’s arrest after his fall from energy.
This story was up to date from an article initially printed on June 22, 2022.