Gaza war: Can International Criminal Court arrest Israeli PM Netanyahu?

The International Criminal Court could also be considering arrest warrants for Hamas leaders

Israeli authorities are making a concerted effort to block feared plans by the International Criminal Court (ICC) to issue arrest warrants against Israeli Prime Minister (PM) Benjamin Netanyahu and other top officials on charges related to the ongoing conflict with Hamas, Israeli media reported over the weekend, citing government sources.   

The court could also be considering arrest warrants for leaders from Hamas, the New York Times reported, citing Israeli officials.   

Israel's National Security Council and foreign ministry are reportedly working to blunt the feared ICC campaign, with reports saying that the court is likely to focus on allegations that Israel has deliberately starved Palestinians in Gaza. 

 

Over the weekend, Israeli officials told local media that the United States (US) was also involved in a last-ditch diplomatic effort to stop the ICC from moving forward.  

In March 2023, the ICC had issued an arrest warrant for Russian President Vladimir Putin, accusing him of being responsible for the war crime of illegal deportation of children and unlawful transfer of people from the territory of Ukraine to the Russian Federation.  

How worried is Netanyahu?   

According to a report in Israeli media, PM Netanyahu was "under unusual stress" over fears that the United Nations tribunal in The Hague could issue arrest warrants against him and other Israeli officials.   

One of the main reported concerns is that such a development would significantly erode Israel's international status. As a result, Netanyahu was reportedly leading a “nonstop push over the telephone”, focused primarily on US President Joe Biden's administration, to prevent an arrest warrant.   

A senior Israeli analyst has told local media that the Israeli government has been working under the assumption that ICC prosecutor Karim Khan could issue the warrants for the arrest of Netanyahu, Israeli Defence Minister Yoav Gallant and Israel Defense Forces (IDF) Chief of Staff Herzi Halevi this week.   

What does this mean for Israel and what are the ICC's powers?   

While Israel is not a member of the court and does not recognise its jurisdiction, the Palestinian territories were admitted as a member state in 2015.   

However, based in The Hague, Netherlands, the tribunal can prosecute crimes committed by nationals belonging to its member states or even on the territory of those states by other actors.   

Established in 2002, the ICC is meant to prosecute war crimes, crimes against humanity, genocide and the crime of aggression if its member states are unable or unwilling to do so themselves.    

The ICC, which deals with investigations into high-profile suspects, has 123 member countries and its budget for 2023 stood at about $180 million.   

However, the ICC has its limitations.   

In theory, if the feared arrest warrants were issued, they would mark the first step towards an eventual trial.    

However, the capture and arraignment of Israeli officials would pose a challenge.   

While an arrest warrant would oblige ICC member states to arrest the concerned Israeli 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 such, 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.   

Previous ICC cases have also shown how difficult it is to convict the senior-most officials. At least up till early 2023, with the ICC being in operation for more than 20 years, it had issued only five convictions for core crimes. None of them were for top officials.     

The ICC investigation is separate from the genocide case against Israel at the International Court of Justice (ICJ), which is also based in The Hague.   

Also known as the World Court, the ICJ is a UN court. While the ICJ deals with disputes between states, the ICC is a treaty-based criminal court that focuses on individual criminal responsibility.   

What has the ICC said?   

In October, ICC prosecutor Khan had said that the court had jurisdiction over any potential war crimes carried out by Israeli forces in the Gaza Strip and by Hamas in Israel.   

The prosecutor had also said that his team was probing any alleged crimes committed in Gaza, adding that those found responsible would be held accountable.   

If the ICC proceeds with issuing warrants, Israeli officials reportedly could be accused of hindering the delivery of humanitarian aid to the Gaza Strip and adopting an excessively harsh response to the Hamas-led October 7 attacks on Israel, which led to an IDF ground invasion and a war that is now in its seventh month.     

How has Israel reacted?   

On Sunday, Israeli Foreign Minister Israel Katz reportedly said that Israel "expects the court to refrain" from issuing such warrants. In a statement, Katz said: "If the orders are issued, they will harm the commanders and soldiers of the IDF and give a boost to the terrorist organisation Hamas and the radical Islamic axis led by Iran against which we are fighting."   

Stressing that Israel follows "all the laws of war", Katz reportedly instructed his country's diplomatic missions around the world to ready themselves for a wave of antisemitism if the ICC does issue arrest warrants.
   

On Friday, Netanyahu said that while any ICC decision would not affect Israel's actions, it would set a dangerous precedent. In a statement, Netanyahu said: "Israel will never accept any attempt by the International Criminal Court in The Hague to undermine its basic right to defend itself." 

(With agency inputs)