Hague (Brussels Morning) – On May 20, 2024, the International Criminal Court (ICC) requested arrest warrants for three Hamas leaders and Israeli leaders, including Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. This significant development involves the ICC’s Pre-Trial Chamber, which must determine if there are reasonable grounds to believe the alleged crimes occurred before issuing the warrants. If accepted, these warrants would obligate the 124 Rome Statute member countries to arrest the individuals if they enter their territories, posing a dilemma for Israel’s allies.
On May 20, 2024, the International Criminal Court (ICC) took a groundbreaking step by requesting arrest warrants for three Hamas leaders and Israeli Prime Minister Benjamin Netanyahu, along with Defense Minister Yoav Gallant. These leaders are accused of severe crimes, including war crimes and crimes against humanity, allegedly committed in Palestine. The decision now rests with the ICC’s Pre-Trial Chamber, which must determine if there are sufficient grounds to proceed. This action not only tests the ICC’s jurisdiction and impartiality but also places significant legal and diplomatic pressures on Israel and its allies, highlighting the complexities and challenges in the realm of international criminal justice.
Legal and Humanitarian Violations in Gaza: ICC Charges Against Netanyahu and Hamas Leaders
The fact of Israel’s siege on Gaza and use of starvation can be used against Benjamin Netanyahu in the court. Article 49 of the Geneva Convention specifically prohibits forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
However, Israel has not ratified the first and second protocols of the conventions, which in 1977 further regulated protection of civilians, property, and the environment during war. Additionally, Israel has not ratified Article 75 of Protocol 1, which requires that persons held by a combatant power shall be treated humanely in all circumstances and provides a detailed list of prohibited conduct.
What cannot be said about Palestine, which has ratified all three protocols, so as a state party, it is undeniably bound to their terms. In the official statement ICC Prosecutor Karim Khan said that there were reasonable grounds to believe that Hamas’s Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif) and Ismail Haniyeh “bear criminal responsibility” for murder, extermination and taking hostages – among numerous other crimes.
Additionally, ICC Prosecutor said that there are also reasonable grounds to believe that Prime Minister of Israel Benjamin Netanyahu and Yoav Gallant, Israeli Minister of Defense, are responsible for other crimes and crimes against humanity “committed on the territory of the State of Palestine”. These include “starvation of civilians as a method of warfare as a war crime…intentionally directing attacks against a civilian population [and] extermination and/or murder”.
ICC Jurisdiction Over Gaza: Legal Challenges and International Tensions
Even so Israel did not ratify several articles of the Geneva Convention and has signed but not ratified the Rome Statute, Israel has committed crimes on the territory of Palestine, which has ratified. For that reason, ICC has a territorial jurisdiction over the territory of Palestine, including Gaza Streep and that fact will be used in order to persecute the perpetrators of the crimes committed on its territory.
Although, some UN member-states saying that Palestine is not a state, the court has addressed that and stated that UN General Assembly accepts it to be a non-member observer state that’s sufficient for it to ratify Human Rights treaties that we should welcome as well as the Rome Statute of the ICC. Nevertheless, enormous effort is taken in order to undermine justice to protect Netanyahu and others Israeli government representatives from war crime charges, especially by the United States. US government is simultaneously providing a policy of double standards: is pushing Israel to allow the delivery of more humanitarian aid to Gaza at the same time signing a $1 billion bill of additional armament to Israel.
ICC Prosecutor’s Crucial Role and Jurisdictional Challenges
The most important decision concerning the case will be done by the ICC Persecutor, who will decide either to apply or not the Article 70 of the Rome Statute, which gives power to the ICC to exercise its jurisdiction over persons for the most serious crimes of international concern. Israeli government will probably use the principle of complementarity, which states that the ICC can only exercise its jurisdiction when national courts are unable or unwilling to prosecute serious crimes against humanity. Another words, the case can be solved under the domestic jurisdiction., what is hard to believe, of course. Â Â Â
At the same time, the International Criminal Court is an institution quite different from the International Court of Justice, as ICC is a part of the UN institutions group, where UN member-states can sue one another. The ICC doesn’t persecute states, it persecutes individuals, and it does not have universal jurisdiction the same way as the ICJ. The Court has not been persecuting high-level Western leaders before as it has been founded previously in order to persecute African criminals.
Well-known cases of the ICC include the case of Omar al-Bashir, who has been accused of five crimes against humanity: murder, extermination, forcible transfer, torture and rape and still didn’t meet trial, Muammar Gaddafi, who died even before the trial, and Ahmad Al Mahdi, a member of associated with the Al-Qaeda in the Islamic Maghreb Ansar Eddine, who has been sentenced to 9 years of imprisonment for the war crimes committed on the territory of Timbuktu. However, the vast majority of the ICC cases has been either dismissed or the perpetrators had been found “on the run.”
Implications of ICC Warrant for Netanyahu’s Arrest
Consequently, the question remains if Netanyahu will be actually arrested by the International Criminal Court in the nearest future? Israel as an important political actor on the international arena with quite a support from the United States, so will he be arrested during his next visit to the United Kingdom? The ICC warrant will be a changing point for the whole international criminal system and will show if the ICC is an institution of justice separated from the political influence of any state. After more than two decades from the establishment of Intenational Criminal Court, it is transforming into one of the most prominent institutions in the system of universal jurisdiction alongside with the International Criminal Court due to the importance of cases brought before them.
