The ICC prosecutor’s decision to file the arrest warrant applications against sitting Israeli Premier Benjamin Netanyahu and Defense Minister Yoav Gallant along with Hamas leaderships namely Yahya Sinwar, Mohammed Diab Ibrahim Al-Masrim and Ismail Haniyeh on May 20 has been one of the major highlights of the current Gaza conflict.
While the International Court of Justice (ICJ) is dealing with Israel’s responsibility under the Genocide Convention and has already ordered several provisional measures against Israel, the development at the ICC brought additional concerns for the warring parties, especially the Israeli leadership. Earlier, the ICC was criticized for “targeting” the political leaders from Africa and weaker states. However, the arrest warrant against Vladimir Putin issued last year and the arrest warrant applications against Benjamin Netanyahu were watershed moments for the court, which both attracted mixed and often self-contradictory reactions from the international community.
The ICC is an international organization established by the Rome Statute and its jurisdiction is limited to the states that became parties to the same. As Israel is not a party to the Rome Statute and Palestine’s statehood is contested by Israel and its allies, Israel always rejected the ICC’s jurisdiction over the Palestine situation. In fact, the State of Palestine acceded to the Rome Statute on 2 January 2015. Though the Office of the Prosecutor started its preliminary examination on January 16, 2015, it waited till December 20, 2019 to decide to open an investigation.
However, due to the legal and factual complexities of the situation, she requested a PTC to rule over the question of ICC’s territorial jurisdiction over Palestine. Finally, the ICC confirmed the status of Palestine as a State Party to the Rome Statute and ruled that its jurisdiction extends over the territories occupied by Israel since 1967. As an anecdote, Bangladesh along with four other states referred this situation to the ICC on November 17, 2023.
Since the ICC can investigate and prosecute any crimes committed within the territory of a state party or nationals of a state party, the alleged crimes included in the application fall within its jurisdictional ambit. The alleged crimes of the arrest warrants against Netanyahu and Gallant were committed in the Palestinian territory. Therefore, Israel’s status as a non-state member does not affect the jurisdictions of the court. On the other hand, though alleged crimes of the arrest warrants against Sinwar, Al-Masri, and Haniyeh were committed in Israeli territory, they being the Palestinian nationals fall within the jurisdiction of the ICC.
The applications contain charges of several counts of war crimes and crimes against humanity for events that took place since October 7, 2023. Prosecutor Karim Khan, a British lawyer, was extremely cautious while preparing the applications. Notably, he had the evidence reviewed by a panel of prominent legal experts. Now, the applications are before a three-member Pre-Trial Chamber (PTC), which will decide the same based on the evidence presented before it. If the application is rejected, the Prosecutor may appeal against the PTC decision before the Appeals Chamber. The evidentiary standard required for issuing the arrest warrants being low, unlike that of final convictions, it would be very unlikely if the PTC would decide negatively.
The implications of the eventual arrest warrants will be immense for all the individuals concerned. The eventual arrest warrants will oblige state parties to the Rome Statute to arrest the accused and transfer them to the court. Since the ICC does not try in absentia, their presence before the court will be a must. At this juncture, there will certainly arise the questions of immunity of the said individuals, especially that of the Israeli premier. Since Israel is not a party to the Rome Statute, this issue appears to be more complicated than usual.
Earlier, the ICC faced this question on multiple occasions in the Al-Bashir case. It is widely recognized that the heads of state, heads of government, and foreign ministers enjoy immunity from prosecution of international crimes. The ICJ also recognised this norm in its arrest warrant case. However, the ICC reached the contrary conclusions in the Jordan Referral re Al-Bashir Appeal Judgment, though in a different context. Regardless of this unsettled legal debate, it is obvious that these individuals will have a hard time while planning any visits to an ICC member State.
Both the ICC and Karim Khan have faced fierce criticism following the filing of the applications from Israel and its allies, especially the United States. The world witnessed opposite reactions when the Court issued arrest warrants against the Russian President. Earlier, Fatou Bensouda and her colleagues faced sanctions from the Trump Administration when she decided to investigate the Afghanistan situation. A number of US politicians are also voicing the same issue now. Israeli leadership has been critical of the ICC even before the filing of the applications. Many Israel’s allies including Germany are also strong supporters of the ICC. It is to be seen how they are going to react in the long run. On the contrary, many States are showing their commitment towards the rule-based international order.
For many commentators, these applications do not include comprehensive counts of charges. For example, they do not mention genocide. However, the investigations are still ongoing, and Karim Khan indicated that there may be additional arrest warrants in the future. Despite all the criticism and challenges, the filing of applications has its own symbolic and legal implications that the believers of the rule-based international system will cherish for a long time. It also transmits a strong signal to the international community at large to stand for justice and accountability as it did during the Nuremberg trial, to be on the right side of history.
Quazi Omar Foysal is an international law expert, currently serving as Lecturer at American International University-Bangladesh.