Benjamin Netanyahu ICC arrest warrant: Can Israeli PM actually be arrested?

Israeli media has described possible International Criminal Court arrest warrants against Israeli PM Benjamin Netanyahu and Defence Minister Yoav Gallant as a 'legal earthquake' and 'legal bombshell'

International Criminal Court (ICC) Chief Prosecutor Karim Khan on Monday announced that he has applied for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for crimes against humanity in the ongoing Gaza war, in what Israeli experts have described as perhaps the most shocking legal bombshell in Israel's history.

In relation to the October 7 attacks on Israel that triggered the conflict, the ICC chief prosecutor is also seeking arrest warrants for senior Hamas leaders: Hamas leader in Gaza Yahya Sinwar, Hamas political chief Ismail Haniyeh, and the leader of Hamas' armed wing, Mohammed Diab Ibrahim al-Masri, better known as Mohammed Deif.

The charges against Sinwar, Haniyeh and al-Masri include "extermination, murder, taking of hostages, rape and sexual assault in detention", Khan told the media. He added that the charges against Netanyahu and Gallant include "causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict".

The ICC, headquartered at The Hague in the Netherlands, was established in 2002. It is tasked with prosecuting individuals for crimes of genocide, crimes against humanity and war crimes. The ICC is independent of the United Nations (UN), but is endorsed by the UN General Assembly. It also maintains a cooperation agreement with the UN. Unlike the International Court of Justice (ICJ), which is an organ of the UN, the ICC does not prosecute states.

What happens next?

A pre-trial chamber, comprising three or four judges, at the ICC will now consider whether to issue the arrest warrants.

If approved by the panel, the arrest warrants will be issued for Israeli PM Netanyahu and Defence Minister Gallant. Warrants will also be issued for the three top Hamas officials: Sinwar, Deif, and Haniyeh.

How likely is ICC to issue arrest warrants?

So far, arrest warrants have not been issued in only two of the 31 cases currently before the ICC. This means that in only those two cases has the pre-trial chamber not confirmed the charges against the suspect.

   

However, there has been at least one instance where the prosecution has withdrawn charges over concerns with evidence and the chances of securing a conviction. In 2011, before he became president, former Kenyan President Uhuru Kenyatta was charged with crimes against humanity. However, the charges against Kenyatta were dropped in 2014, after he became president.

Can the ICC actually arrest Netanyahu and Hamas leaders?

While an arrest warrant would oblige ICC member states to arrest the concerned Israeli and Hamas officials if they were to travel to their country, as a judicial institution, the ICC itself does not possess a police force or any other way to enforce such arrests.

As a result, the ICC relies on cooperation with countries worldwide for making arrests, transferring the arrested individuals to the ICC detention centre in The Hague, freezing their assets, and enforcing sentences.

In essence, if the warrants are issued, states that have signed up to the Rome Statute, the ICC’s founding document, would be obliged to detain the concerned Israeli and Hamas officials if they have the chance. However, the ICC's 124 signatories do not include Russia, China, the United States (US), and Israel.

Among the Hamas leaders for whom arrest warrants have been sought, while Sinwar and Deif are likely to be in Gaza, Haniyeh resides in Qatar, which is also not a signatory to the ICC's Rome Statute.

However, the ICC claims jurisdiction over Gaza, East Jerusalem and the West Bank after Palestinian leaders agreed to be bound by its founding principles in 2015.

Ultimately, it will be difficult for the ICC or its signatory states to arrest all or some of the Israeli and Hamas leaders facing arrest warrants.

So far, the ICC has issued arrest warrants against 42 individuals, with 21 of them having been detained with the help of its member states.

Then what do the ICC arrest warrants mean?

One of the major consequences of the ICC issuing arrest warrants against the Israeli and Hamas leaders would be that it would restrict their freedom of movement. 

The arrest warrants would mean that Israeli PM Netanyahu and Defence Minister Gallant would become wanted men in 124 countries, including almost every major Western nation apart from the US. If either Netanyahu or Gallant set foot in an ICC signatory state, that state would be required to arrest them.

For Ismail Haniyeh, the head of the Hamas political branch, facing an arrest warrant would mean his regular trips to meet Arab leaders would become more difficult.

However, given that Israel has been trying to kill the other accused Hamas leaders, Mohammed Deif and Yahya Sinwar, for the past seven months, along with the fact that they are believed to be hiding inside Gaza, arrest warrants are not likely to add to the pressures on them.

Ultimately, the reputational damage will be greater for the Israeli leaders, and by extension, for Israel. If the warrants are granted, Israeli PM Netanyahu will join the ranks of national leaders against whom arrest warrants have been issued: Russian President Vladimir Putin, former Sudanese President Omar al-Bashir, and the now-deceased leader of Libya Muammar Gaddafi.

Israeli media has also noted that Netanyahu would be the first-ever leader of a Western-oriented nation to be charged by the ICC.

What happens after ICC arrest warrants are issued? 

The ICC chief prosecutor seeking arrest warrants doesn't immediately mean that the concerned individuals are guilty.

The ICC can summon the suspects to appear voluntarily if it finds sufficient evidence of crimes.

The ICC can also issue arrest warrants, in which case, the court will have to rely on member countries to make the arrest and transfer the suspects to it.
 

Even if the warrants are issued, it would set off a process that could lead to a lengthy trial.

After a suspect appears before the court, a pre-trial is conducted to decide if there is sufficient evidence for the case to proceed to trial.

If the case does proceed to a trial, which is held before three ICC judges, then the prosecution has to prove "beyond reasonable doubt" that the concerned individual is guilty of the crimes.

Once the court passes a verdict, the individual can be sentenced to up to 30 years in prison. A life sentence can also be given under exceptional circumstances.

South Africa, Bangladesh, Bolivia, Comoros, and Djibouti referred Israel's actions in Gaza to the ICC in November, calling on it to investigate possible crimes of genocide, crimes against humanity and war crimes in the Palestinian territories.

The October 7 Hamas attack that killed 1,200 people in Israel and saw over 250 being taken hostage triggered Israel's war in Gaza, which has dragged on for nearly eight months.

Since then, over 35,000 people have been killed during Israel's attacks in Gaza, according to Palestinian authorities. Not only has more than half of its population of 2.3 million been internally displaced, famine has also set in in parts of the Gaza strip.