International Criminal Court (ICC) prosecutor Karim Khan confirmed on Monday that he was seeking arrest warrants for five individuals accused of war crimes and crimes against humanity in relation to Hamas’ attack on Israel on 7 October and Israel’s retaliatory assault on the Gaza Strip. 

Daily Maverick asked the Southern Africa Litigation Centre’s International Justice Cluster leader, Dr Atilla Kisla, about the implications of the arrest warrant applications. 

Who are the accused and what are the allegations?

The accused are Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, who Khan said bore criminal responsibility for war crimes and crimes against humanity, including — among others — using the starvation of civilians as a method of warfare, intentionally directing attacks against a civilian population and extermination. 

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Khan has also sought arrest warrants for Hamas’ chief in the Gaza Strip, Yahya Sinwar; the commander of its military wing, Mohammed Diab Ibrahim al-Masri; and the organisation’s political bureau leader, Ismail Haniyeh. They are accused of war crimes and crimes against humanity, including — among others — extermination, taking hostages, rape and other acts of sexual violence.

The charges are extensive. Is that why the arrest warrant applications took so long?

Possibly. But it could also be due to the amount of evidence the prosecution had to go through and analyse, Kisla said.

“Some commentators have expressed their concern about the ICC taking so long to request arrest warrants, but it could be because the prosecutor wanted to make sure that these cases met the threshold that they need to meet at this stage of the arrest warrant application. Meaning that there needs to be reasonable grounds to believe that these individuals are responsible for the crimes committed,” Kisla explained.   

Khan’s applications for arrest warrants for the Israeli and Hamas leaders were accompanied by an independent report by a panel of experts, who unanimously backed the prosecutor. The experts include the prominent British barrister, adjunct professor at Columbia Law School and co-founder of the Clooney Foundation for Justice, Amal Clooney; former ICC judge Lord Justice Adrian Fulford; and former judge and president of the International Criminal Tribunal for the former Yugoslavia, Judge Theodor Meron.  

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Prosecutor of the International Criminal Court (ICC) Karim Khan listens to the Attorney-General of Venezuela Tarek William Saab and the President of the National Assembly Jorge Rodriguez during a meeting at the Federal Legislative Palace in Caracas, Venezuela, 22 April 2024. (Photo: EPA-EFE / Miguel Gutierrez)

In an op-ed in the Financial Times, the panellists said that as international lawyers they “felt compelled to assist when the prosecutor of the International Criminal Court, Karim Khan, asked us to advise whether there was sufficient evidence to lay charges of war crimes and crimes against humanity.

“There is no doubt that the step taken today by the prosecutor is a milestone in the history of international criminal law. There is no conflict that should be excluded from the reach of the law; no child’s life valued less than another’s. The law we apply is humanity’s law, not the law of any given side,” they wrote.

Will the arrest warrants be granted and when?

The warrants of arrest announced by Khan still need to be approved by Pre-Trial Chamber 1 of the ICC. It’s unclear how long this could take. In the case of Russia’s Vladimir Putin, the ICC prosecutor applied for an arrest warrant on 22 February 2023, and the decision by Pre-Trial Chamber 2 of the ICC was announced on 17 March 2023 — meaning it took slightly more than three weeks. 

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Kisla said, “The decision by the ICC prosecutor to … apply for arrest warrants in … Palestine is a smart strategic move as it shows the public that the prosecutor is fulfilling their mandate and acting without fear or favour, and that the decision is now with the Pre-Trial Chamber I, which might help to slightly take … the pressure off the Prosecutor’s Office and puts the ball into the field of the ICC judges.

“Of course, there is a possibility that the Pre-Trial Chamber might reject the prosecutor’s application for an arrest warrant.   

“The test that the Pre-Trial Chamber will need to apply is whether there are reasonable grounds to believe that an individual bears criminal responsibility for crimes that are under the jurisdiction of the court. In that regard, the Pre-Trial Chamber will assess the evidence presented by the Prosecutor’s Office and will have to decide whether the reasonable grounds test is met. If not, the Pre-Trial Chamber will not issue an arrest warrant,”  

If arrest warrants are issued, what would that mean for those charged?

“If arrest warrants are issued, those individuals are free to travel; however, an arrest warrant will certainly restrict the countries they can visit,” Kisla said. The 124 member states of the ICC would be under an obligation to arrest Netanyahu, Gallant and the three Hamas leaders, and non-member states would be under pressure to carry out such arrests.

Kisla said, “Once the arrest warrant is issued and the individual in question is travelling, for instance to South Africa (an ICC member state), the court will issue a request to South Africa to arrest and surrender the individual in question to the ICC. 

“It is the same scenario we had with Putin last year, where South Africa as an ICC member state was under the obligation to abide by the request made by the ICC to arrest and surrender Putin if he had come to South Africa.” 

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This means that South Africa, as a member state, is obliged to cooperate with the court, including by arresting any fugitive from the court — like the Hamas and Israeli leaders if arrest warrants are issued — at the court’s request if that fugitive enters its jurisdiction. 

However, there have been instances where those for whom the ICC has issued arrest warrants have visited member states without being arrested. The former Sudanese president Omar al-Bashir, whom the ICC had indicted and issued arrest warrants for in 2009 and 2010 for crimes against humanity, war crimes and genocide, visited ICC member states Kenya, Chad and South Africa without being arrested. 

Are more warrants expected from the ICC prosecutor?

In his statement, Khan made it clear that the possibility of more arrest warrants could not be ruled out. He said his office “will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met”.

Kisla said the ICC could request further arrest warrants at a later stage or even amend the charges. 

Does the ICC have jurisdiction over this matter?

Yes. In January 2015, Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the ICC over alleged crimes committed in the occupied Palestinian territory, including East Jerusalem.

“This means that the ICC has jurisdiction over any international crime under its jurisdiction, as long as it happens on the territory of Palestine. This was further confirmed by a decision of the Pre-Trial Chamber from February 2021, stating that the ICC had criminal jurisdiction over Gaza, the West Bank and East Jerusalem,” Kisla explained. 

“Since the alleged crimes by Israeli forces were committed on the territory of Palestine, the ICC has jurisdiction over those alleged war crimes and crimes against humanity. The fact that the individuals in question are not citizens of an ICC member state does not affect the jurisdiction of the court. It still has jurisdiction over those individuals.” 

This is important because US Secretary of State Antony Blinken, in a statement on Monday, said the US “has been clear since well before the current conflict that the ICC has no jurisdiction over this matter. Despite not being a member of the court, Israel was prepared to cooperate with the prosecutor.” 

Kisla said there were two important points to make about the view of the US — which, he said, was wrong.  

“First, the US does not consider Palestine as a state. However, the ICC has accepted Palestine as a state and acts according to the submission by Palestine under article 12(3) of the Rome Statute.

“The other aspect that the US is referring to is the principle of complementarity. Under that principle, a case before the ICC is only admissible if a state that has jurisdiction (in this case, Israel) is unwilling or unable to genuinely carry out the investigation and/or prosecution [of article 17 of the Rome Statute].

“In this case, the prosecutor obviously believes that Israel is unwilling or unable to carry out the investigation/prosecution regarding those two individuals in question. However, the US is arguing that Israel has shown with some of the ongoing cases in the country that it is willing and able to conduct this kind of investigation/prosecution,” he said. 

Both France and Germany stressed in their responses to Khan’s announcement that the ICC judges would have to pay particular attention to Israel’s litigation against its own citizens in Gaza, before deciding whether to prosecute Netanyahu and Gallant. This is because the ICC’s principle of “complementarity” prescribes that the ICC should only intervene in cases where national courts have proven themselves unwilling or unable to act. 

What are the implications of an arrest warrant for states supplying Israel with arms?

If Pre-Trial Chamber 1 agrees with Khan and issues arrest warrants, Kisla believes countries that supply arms to Israel will “have to justify why they are transporting arms to a state where the head of state is wanted by the ICC.

“They will need to make a decision about whether they are on the side of international criminal justice, or whether they rank their relationship with Israel higher in that regard.” DM