subscribe Support our award-winning journalism. The Premium package (digital only) is R30 for the first month and thereafter you pay R129 p/m now ad-free for all subscribers.
Subscribe now
Israeli prime minister Benjamin Netanyahu, left, and defense minister Yoav Gallant are during a press conference in the Kirya military base in Tel Aviv, Israel in this October 28 2023 file photo. Picture: ABIR SULTAN POOL via REUTERS
Israeli prime minister Benjamin Netanyahu, left, and defense minister Yoav Gallant are during a press conference in the Kirya military base in Tel Aviv, Israel in this October 28 2023 file photo. Picture: ABIR SULTAN POOL via REUTERS

The Hague — The International Criminal Court (ICC) prosecutor’s office has requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defence chief, and also for three Hamas leaders, including Yahya Sinwar, for alleged war crimes and crimes against humanity.

Here is a look at what happens next, and how the ICC prosecutor’s move might affect diplomatic relations and other court cases focused on Gaza.

What’s next at the ICC?

Prosecutor Karim Khan’s request goes to a pre-trial chamber. The chamber will be composed of three magistrates: presiding judge Iulia Motoc of Romania, Mexican judge Maria del Socorro Flores Liera and judge Reine Alapini-Gansou of Benin. There is no deadline for judges to decide whether to issue arrest warrants. In previous cases, judges have taken anywhere from just over a month to several months.

If the judges agree there are "reasonable grounds" to believe war crimes or crimes against humanity have been committed, they will issue an arrest warrant. The warrant must name the person, the specific crimes for which an arrest is sought and a statement of facts which are alleged to constitute those crimes.

Judges can amend arrest warrant requests and grant only portions of what the prosecutor is seeking. Charges can also be changed and updated later.

The International Criminal Court in The Hague, the Netherlands. Picture: REUTERS/PIROSCHKA VAN DE WOUW
The International Criminal Court in The Hague, the Netherlands. Picture: REUTERS/PIROSCHKA VAN DE WOUW

Israeli and Hamas leaders have dismissed allegations of committing war crimes, and representatives of both sides criticised Khan's decision.

Will Israeli and Hamas leaders be arrested?

The ICC’s founding Rome statute combined with jurisprudence from past cases involving arrest warrants against sitting heads of state oblige all 124 ICC signatory states to arrest and hand over any individual subject to an ICC arrest warrant if they set foot on their territory. However, the court has no means to enforce an arrest. The sanction for not arresting someone is a referral back to the ICC’s assembly of member states and ultimately a referral to the U.N. Security Council.

Can an ICC investigation be paused?

The court’s rules allow for the UN Security Council to adopt a resolution that would pause or defer an investigation or a prosecution for a year, with the possibility of renewing that indefinitely.

In past cases where a state has ignored its obligation to arrest an individual facing an ICC warrant, they have received a procedural slap on the wrist at most.

In past cases where a state has ignored its obligation to arrest an individual facing an ICC warrant, they have received a procedural slap on the wrist at most

Can they still travel?

Yes they can. Neither the application for a warrant nor the issuance of an ICC arrest warrant curbs an individual’s freedom to travel. However, once an arrest warrant has been issued, they risk arrest if they travel to an ICC signatory state, which may influence their decision-making.

There are no restrictions on political leaders, legislators or diplomats from meeting individuals with an ICC arrest warrant against them. Politically, however, the optics of this may be bad.

Will this application for warrants influence other cases?

Not directly, but perhaps indirectly. The ICC application is a separate matter to, for example, court cases demanding an arms embargo against Israel or SA’s attempts at the International Court of Justice to seek a halt to Israel’s offensive on Rafah.

If the judges decide there are reasonable grounds to believe Netanyahu and defence minister Yoav Gallant are committing war crimes and crimes against humanity in Gaza, it could strengthen legal challenges demanding an arms embargo elsewhere as numerous states have provisions against selling arms to states who might use them in ways that violate international humanitarian law.

Reuters

subscribe Support our award-winning journalism. The Premium package (digital only) is R30 for the first month and thereafter you pay R129 p/m now ad-free for all subscribers.
Subscribe now

Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.

Speech Bubbles

Please read our Comment Policy before commenting.