ICC requests Israel arrest warrants: Implications and next steps explained

The prosecutor of the International Criminal Court announced on Monday that he had requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three leaders of Hamas.

Why has the ICC pursued arrest warrants?

Chief prosecutor Karim Khan said he’s pursuing arrest warrants for Netanyahu and Gallant because he believes they were responsible for war crimes and crimes against humanity, including the starvation of civilians as a weapon of war and “intentionally directing attacks against a civilian population.”

The warrants have not yet been issued because judges from the court must approve them.

Several Israeli leaders objected to the ICC’s announcement, arguing that its leaders and the conduct of the Israeli military should not be compared to the U.S.-designated terrorist organization Hamas that carried out the Oct. 7 terrorist attacks. The United States shared that sentiment.

“The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” President Joe Biden said in a statement. “And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.”

Hamas’s attack resulted in the deaths of roughly 1,200 people and the kidnapping of approximately 250 more. Israel’s retaliation, with the intent of eliminating Hamas, has included the deaths of around 14,000 militants and about 16,000 civilians, according to Netanyahu, the displacement of most of Gaza, and has pushed every Palestinian living in the strip to the brink of famine. The Hamas-controlled Gaza Health Ministry has said the death toll is near 35,000 and does not distinguish between civilians and combatants.

Khan is also seeking warrants for Yahya Sinwar, the head of Hamas in Gaza; Mohammed Deif, the head of the military; and Ismail Haniyeh, the head of their political bureau, for their roles in the Oct. 7 terrorist attack.

“The suggestion of moral equivalence between a democracy trying to defend its citizens and minimize civilian casualties in Gaza versus a terror organization deliberately trying to murder civilians and use its own people as human shields is deeply misguided and dangerous,” Bradley Bowman, a director at the Foundation for Defense of Democracies, told the Washington Examiner.

On Monday, Israeli Foreign Minister Israel Katz said he had ordered the immediate establishment of a special committee aimed at fighting the decision, which he claimed “was intended first and foremost to tie the hands of the state of Israel and deny it the right of self-defense.”

What is the ICC?

The ICC, which was created in 2002, is the world’s only permanent international court that can prosecute people accused of war crimes, genocide, and crimes against humanity, though Israel is not among the 124 member nations. Palestine has been a member of the ICC since 2015.

The court cannot try defendants in absentia and relies on its members to make arrests. So, Netanyahu and Gallant could be arrested, if the warrants are in fact issued, if they travel to one of the countries that is a member of the court.

“Any attempt to draw parallels between these atrocious terrorists and a democratically elected government of Israel, working to fulfill its duty to defend and protect its citizens entirely in adherence to the principles of international law, is outrageous and cannot be accepted by anyone,” Israeli President Isaac Herzog said. “We will not forget who started this war and who raped, butchered, burned, brutalized, and kidnapped innocent citizens and families.”

Does the U.S. acknowledge the ICC?

The U.S. is not a member state of the court.

U.S. Secretary of State Antony Blinken, in his first comments about the ICC’s pursuit of arrest warrants, said in a statement, “The United States has been clear since well before the current conflict that that ICC has no jurisdiction over this matter.”

“The ICC was established by its state parties as a court of limited jurisdiction,” he added. “Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed. In other situations, the Prosecutor deferred to national investigations and worked with states to allow them time to investigate. The Prosecutor did not afford the same opportunity to Israel, which has ongoing investigations into allegations against its personnel.”

He also raised questions about the way the investigation was conducted, in part because Israel has investigations ongoing and in other cases the prosecutor has deferred to national investigations and worked with states to allow them time to investigate. Khan was supposed to travel to Israel next week to meet with Israeli leaders about the investigation.

State Department spokesman Matthew Miller acknowledged that the U.S. does not believe the ICC has the jurisdiction to issue arrest warrants for either the Israeli or Hamas leaders.

Is it likely Israelis would be arrested?

ICC judges have approved the arrest warrants for 46 people, and most of them have not been tried. Only 10 of these people have been convicted, and four have been acquitted. Charges against seven people have been dropped due to their deaths. Seventeen people who have ICC warrants for their arrest remain at large.

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In March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin, whom the court deemed responsible for the forced deportation of thousands of Ukrainian children to Russia, and a couple of months later, he skipped an economic summit next month in Johannesburg, South Africa, because it is a member of the court.

Other leaders whom the ICC has issued arrest warrants for include former Sudanese President Omar Hassan al Bashir and other officials in 2009 and 2010; Libya’s then-leader Col. Muammar Gaddafi and others in 2011; Kenya’s then-Deputy President William Ruto, who had been charged in 2011 but had his case dropped in 2016; and former Ivory Coast President Laurent Gbagbo in 2011, who was acquitted along with another leader in Ivory Coast, Charles Ble Goude, in 2021.