ICC has no police, arrest would depend on member states

The International Criminal Court issued arrest warrants on Thursday for Israeli Prime Minister Benjamin Netanyahu and his former defence chief, as well as a Hamas leader, Ibrahim Al-Masri, for alleged war crimes and crimes against humanity in the Gaza conflict.

In their decision, the ICC judges said there were reasonable grounds to believe Netanyahu and Yoav Gallant were criminally responsible for acts including murder, persecution and starvation as a weapon of war as part of a “widespread and systematic attack against the civilian population of Gaza”.

The decision was met with outrage in Israel, which called it shameful and absurd. Hamas welcomed the warrants against the Israelis, and a senior official told Reuters it was a first step towards justice.

The warrant for Masri lists charges of mass killings during the Oct. 7, 2023, attacks on Israel that triggered the Gaza war, and also charges of rape and the taking of hostages.

Israel has said it killed Masri, also known as Mohammed Deif, in an airstrike in July but Hamas has neither confirmed nor denied this. The prosecution indicated it would continue to gather information with respect to his reported death.

Israel has rejected the jurisdiction of the Hague-based court and denies war crimes in Gaza. The United States, Israel’s main diplomatic supporter, is also not a member of the ICC.

ICC prosecutor Karim Khan had announced on May 20 that he was seeking arrest warrants for alleged crimes connected to the Hamas-led attacks on Israel and the Israeli military response in Gaza. Israeli and Hamas leaders have dismissed allegations that they committed war crimes.

The court does not have its own police force to carry out arrests and relies on its 124 member states for that. Whether they are arrested or not depends on the member states. They have an obligation to do so but the court has only limited diplomatic means to force them if they do not want to.

REACTIONS

Netanyahu’s office said the ICC decision was “anti-semitic” and he will “not yield to pressure, will not be deterred” until Israel’s war objectives are met.

The ICC has “lost all legitimacy” after issuing the arrest warrants for Netanyahu and Gallant, Israel’s Foreign Minister Gideon Saar said.

“A dark moment for the International Criminal Court,” Saar said on X, adding that it had issued “absurd orders without authority”.

There was no immediate comment from Gallant.

In a statement, Hamas welcomed the warrants against Gallant and Netanyahu and urged the court to expand accountability to all Israeli leaders.

Senior Hamas official Basem Naim told Reuters the warrants against the Israelis were an important step towards bringing justice for the victims.

“But it remains a limited and spiritual step if it was not backed practically by all countries to get this decision implemented in compliance with law and justice,” he said.

The EU’s foreign policy chief, Josep Borrell, said the decision was not a political one but made by a court and thus should be respected and implemented.

“The tragedy in Gaza has to stop,” Borrell said.

Jordan’s foreign minister Ayman Safadi also said the ICC’s decision must be implemented, adding that the Palestinians deserved justice after what he termed Israel’s “war crimes” in Gaza.

The Netherlands’ foreign minister Caspar Veldkamp said his country was prepared to act upon the warrants, Dutch news agency ANP reported.

In the United States, Republican Senator Lindsey Graham, a close ally of President-elect Donald Trump, said: “The Court is a dangerous joke. It is now time for the U.S. Senate to act and sanction this irresponsible body.”

Israel’s 13-month campaign in Gaza has killed about 44,000 Palestinians and displaced nearly all the enclave’s population while creating a humanitarian crisis, Gaza officials say.

It launched the campaign in response to the October 2023, Hamas-led attack which killed 1,200 people in southern Israel, with more than 250 others taken hostage, Israel has said.

What is the International Criminal Court?

  • The court was established in 2002 to prosecute war crimes, crimes against humanity, genocide and the crime of aggression when member states are unwilling or unable to do so themselves. It can prosecute crimes committed by nationals of member states or on the territory of member states by other actors. It has 124 member states. Its budget for 2024 is about 187 million euros.
  • The ICC is conducting investigations, ranging from Ukraine and African states such as Uganda, Democratic Republic of Congo and Kenya to Venezuela in Latin America and Asian nations such as Myanmar and the Philippines, according to its website.
  • Its website says there have so far been 32 cases before the court, with some cases having more than one suspect. ICC judges have issued at least 56 arrest warrants.
  • Twenty-one people have been held in the ICC detention centre and have appeared before the court. At least 20 people remain at large. Charges have been dropped against seven people due to their deaths. The judges have issued 11 convictions and four acquittals.
  • Of those 11 convictions only six have been for the court’s core crimes of war crimes and crimes against humanity, the others were for crimes like witness tampering. The six convicted men were all African militia leaders from Democratic Republic of Congo, Mali and Uganda. Terms range from nine to 30 years in prison. The maximum possible term is life imprisonment.
  • A prominent fugitive is Russian President Vladimir Putin, accused of the war crime of illegally deporting hundreds of children from Ukraine. The ICC issued an arrest warrant for Putin in March 2023. The Kremlin said the move was meaningless. Moscow has repeatedly denied accusations that its forces have committed atrocities during its invasion of its neighbour.
  • Although the court is supported by many United Nations members and the European Union, other powers such as the United States, China and Russia are not members, arguing the ICC could be used for politically motivated prosecutions.
  • Israel is not a member of the court and does not recognise its jurisdiction, but the Palestinian territories were admitted as a member state in 2015. In 2021 the ICC opened an official investigation into allegations of war crimes and crimes against humanity committed in the occupied Palestinian territories. ICC prosecutor Karim Khan said in October last year the court had jurisdiction over any potential war crimes carried out by Hamas fighters in Israel and by Israelis in the Gaza Strip.
  • In May, the ICC prosecutor’s office requested arrest warrants for Netanyahu, Gallant and also for three Hamas leaders for alleged war crimes and crimes against humanity. Israel and Palestinian leaders have dismissed allegations of war crimes, and representatives for both sides have criticised Khan’s decision to seek warrants.