The arrest warrants issued by the Pre-Trial Chamber of the ICC against Israeli Prime Minister Benjamin Netanyahu, former defence minister Yoav Gallant and Hamas military leader Mohammed Diab Ibrahim Al-Masri, are very unlikely to lead to their arrests.
But they could certainly restrict their international movements and also perhaps diminish Western military support for Israel.
The Southern Africa Litigation Centre’s international justice cluster lead, Dr Atilla Kisla, told Daily Maverick that the warrants “are a significant and meaningful step in fighting impunity for international crimes”.
“The arrest warrants show that no one is above the law, and re-establishes the court’s credibility as an independent and impartial institution in holding perpetrators of international crimes accountable,” he said, noting that there had previously been “voices and critiques of double standards at the court”.
ICC Prosecutor Karim Khan announced on Thursday, 21 November 2024, that the ICC judges had accepted his request to issue the arrest warrants against the three men for their complicity in the current war that began on 7 October 2023 when Hamas attacked southern Israel, killing about 1,200 people mostly civilians, and abducting another 250.
Israel retaliated with a major military assault on Gaza, which Hamas controls, and this week the Gaza Health Ministry said the death toll in Gaza had reached 44,056.
Prosecutor Khan said; “With respect to Mohammed Diab Ibrahim Al-Masri, more commonly known as Deif, Commander-in-Chief of the military wing of the Islamic Resistance Movement “Hamas”, known as the Al-Qassam Brigades, the judges of the International Criminal Court have found reasonable grounds to believe that he is responsible for the crimes against humanity of murder, extermination, torture, and rape and other forms of sexual violence; as well as the war crimes of murder, cruel treatment, torture, taking hostages, outrages upon personal dignity, and rape and other forms of sexual violence.
“With respect to Israeli Prime Minister Benjamin Netanyahu, and former Israeli Minister of Defence Yoav Gallant, the judges of the International Criminal Court have found that there are reasonable grounds to believe that each has committed the war crime of using starvation as a method of warfare and crimes against humanity of murder, persecution, and other inhumane acts, as a direct perpetrator, acting jointly with others. The chamber also found reasonable grounds to believe that they are each responsible for the war crime of intentionally directing attacks against civilians as a superior.”
Commanders responsible
Khan’s reference to holding Netanyahu and Gallant responsible “as a superior” refers to the ICC principle that overall commanders are responsible for the conduct of their subordinates, even if they do not carry out the alleged crimes personally.
Khan also noted that his office had applied for warrants of arrests for Yahya Sinwar, then head of Hamas in the Gaza Strip, and Ismail Haniyeh, former head of the Hamas Political Bureau, “but later withdrew them following evidence confirming their deaths”. Kisla said that Israel had also stated that Al-Masri was dead.
Khan appealed to all States Parties to the Rome Statute which governs the ICC “to live up to their commitment to the Rome Statute by respecting and complying with these judicial orders".
“We count on their cooperation in this situation, as with all other situations under the court’s jurisdiction. We also welcome collaboration with non-states parties in working towards accountability and upholding international law.”
Kisla said Khan was able to issue warrants for the arrests of the two Israeli officials even though Israel is not a member of the ICC because the ICC has jurisdiction over any conduct that occurs in the Palestinian territory (Gaza, West Bank, East Jerusalem) as the state of Palestine had accepted the ICC’s jurisdiction. This was confirmed by the ICC courts in February 2021.
Kisla noted that the ball was now in the ICC member states’ court as the court does not have its own enforcement authority and relies on the cooperation of its member states in this context.
“Once the ICC sends out a request for arrest and surrender, States like South Africa, Germany or the UK that are part of the ICC have an obligation to arrest and surrender the individuals in question.”
He added that the arrest warrants for Netanyahu and Gallant “will certainly be a limiting factor in terms of their ability to travel. If we look at countries like, for instance, Germany, a country that has supported and upheld principles of international criminal justice and a country which has conducted its own domestic prosecutions for international crimes under the principle of universal jurisdiction, it would constitute a complete loss of credibility if such a country ignores its obligations under the Rome Statute and does not effect an arrest despite existing arrest warrants.”
But it is not clear how all states will react. Clearly a state like South Africa which has brought genocide charges against Israel to the International Court of Justice (ICJ) would arrest Netanyahu if he set foot in this country. Which is just another reason why he won’t, though that was highly unlikely anyway given the very bad relations between the two countries.
It seems likely , as Kisla suggested, that states like the UK, Germany and others which are themselves States Parties to the Rome Statute and thereby members of the ICC will as a matter of policy now not invite Netanyahu to visit to avoid having to arrest him.
More controversially, it is entirely possible that the US, especially under Donald Trump, who takes office on 20January 2025, will very ostentatiously invite Netanyahu to visit America to snub the ICC. The US is not a member of the court and is under no obligation to arrest Netanyahu.
Apart from the question of directly complying with the ICC arrest warrants, there would be other wider implications for Israel’s relations with the world, Kisla indicated.
“While the arrest warrants are only a first step in holding perpetrators of international crimes accountable, I expect the decision to have wider implications on a bilateral level.
“States (member states and non-member states) will have to take the decision that there are reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for war crimes and crimes against humanity into account. Especially States that are directly supporting Israel with arms exports cannot just ignore the decision by the ICC as such States are aware that they have been, or are contributing support, to someone who is wanted for war crimes and crimes against humanity by the court.
“It will be interesting to see how different member states of the ICC react to the arrest warrants, as such reactions can potentially reveal double standards regarding the application of international criminal law.”
Double standards
Kisla said it was disappointing to see the double standards being applied by the US even under current President Joe Biden.
“While the arrest warrants from yesterday have been described as “outrageous”, the president welcomed the arrest warrants in the Putin matter. Such a politicisation of international criminal law has the potential to harm the credibility of the entire legal regime.”
It seems likely that Israel will retort that it is just exercising its right to self-defence. However, Kisla said: “The arrest warrants from yesterday against Mr Netanyahu and Mr Gallant do not constitute a legal assessment of the right of self-defence. Even if one agrees that such a right is applicable, that does not grant a state to commit war crimes and crimes against humanity. A state that exercises its right of self-defence is still bound by principles and rules of international law.”
Prosecutor Khan said he would continue to seek cooperation from all stakeholders including Israel and Palestine in investigating both incriminating and exonerating circumstances equally.
“In line with the Rome Statute, the door to complementarity continues to remain open.”
The complementarity principle of the ICC stipulates that the court should only litigate when states themselves are unwilling or unable to do so.
So Khan was in effect saying that if Israel showed itself willing and able to prosecute Netanyahu and Gallant “for substantially the same conduct”, the ICC would drop its charges against them. Likewise with the state of Palestine and Al-Masri.
However neither of these possibilities are likely. While Israel has a functioning and probably quite independent judiciary — which has prosecuted individual soldiers for misconduct, in war, it seems very unlikely it would prosecute the head of the government and the then defence minister for overall, command responsibility for the crimes alleged in the warrants.
Khan added that his office was pursuing additional lines of inquiry concerning the situation in the State of Palestine, including in Gaza, the West Bank, including the West Bank.
“We will continue to carry out our mandate in order to fulfil the fundamental commitment forming the basis of the Rome Statute: that the lives of all human beings have equal value,” he said. DM