ICC arrest warrant against PM Benjamin Netanyahu. Now what?

Judges at the International Criminal Court (ICC) have requested arrest warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. They are accused of war crimes and crimes against humanity in the Gaza Strip. 

In doing so, the ICC has rejected Israel's previous challenge to the court's jurisdiction, specifying that Israel's acceptance of the court's jurisdiction was not required.

Specifically, the ICC stated there were "reasonable grounds" to suggest that Netanyahu and Gallant bore "criminal responsibility" for applying starvation as a method of warfare and for crimes against humanity in the form of murder, persecution and other inhumane acts.

The court also issued an arrest warrant for Hamas leaders Ibrahim al-Masri, also known as Mohammed Deif, for alleged war crimes and crimes against humanity related to the Islamist militant group's October 7, 2023 attacks on Israel. Charges leveled against al-Masri include murder, torture, sexual violence, and hostage taking, among other things.

Previous arrest warrants against former Hamas leaders Yahya Sinwar and Ismael Haniyeh have been withdrawn following the confirmation of their killings by Israeli forces. Israel claims to have killed al-Masri, but Hamas has neither confirmed nor denied this.

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

The International Criminal Court only investigates individuals and 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 been looking into possible war crimes committed by Israel since 2021. At the same time, the court has also been investigating similar accusations leveled against Hamas fighters. Investigations are also currently ongoing with regard to acts of violence committed by Israeli settlers in the occupied West Bank.

Recent developments in the war between Israel and Hamas are all being considered in that context. This most recent violence erupted when Hamas fighters attacked southern Israel on October 7, 2023, killing some 1,200 people and abducting more than 240 back to Gaza. Hamas is considered a terrorist organization by numerous Western nations, including many EU member states as well as the US.

According to Gaza's Health Ministry, Israel's military response to the attack has killed more than 44,000 people, though these numbers cannot be independently verified. A July report by the medical journal The Lancet estimated there could be "up to 186,000 or even more" deaths attributable to the violence in Gaza.

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 abovementioned crimes at the national level. The ongoing war makes it even more unlikely 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 do so. In this case, 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 could the ICC warrant have for Netanyahu?

An arrest warrant is not a conviction. In the first instance, it is a sign that the ICC takes accusations leveled 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 greatly limits the freedom of movement that Netanyahu and his associates enjoy, 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's 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 recognize the legitimacy of the ICC.

How is this arrest warrant tied to accusations of genocide leveled 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 leveled 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 recognized the "risk of genocide in the Gaza Strip." In May, the court issued new provisional measures ordering Israel to immediately end military operations in Rafah in southern Gaza and open the border crossing for urgent aid deliveries.

But the ICJ has stopped short of 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.

This article was originally written in German. It was first published on April 30, 2024, and has been updated with new developments on May 21, 2024 and November 21, 2024.