What Do the ICC Warrants Against Israel and Hamas Mean for the Conflict?

What is the ICC?

The International Criminal Court (ICC) is an international tribunal founded in 2002 with the aim of investigating and trying individuals most responsible for grave violations of international law, including war crimes, crimes against humanity, crimes of aggression, and genocide.

The ICC is governed by the Rome Statute, a treaty which 124 states have signed and ratified, making them State Parties to the court. Israel is not a member of the ICC, but Palestine acceded in 2015, giving the court jurisdiction over alleged crimes perpetrated in Gaza.

The ICC is distinct from the International Court of Justice, which is part of the UN and hears disputes between states (including South Africa’s genocide case against Israel), rather than charges against individuals.

What are the Charges?

The ICC’s Chief Prosecutor, Karim Khan KC, has requested arrest warrants for Israeli and Hamas leaders on charges of war crimes and crimes against humanity.

For Israel’s Netanyahu and Gallant, the charges include starvation of civilians as a method of warfare, wilfully causing great suffering, wilful killing, intentional attacks against a civilian population, extermination and/or murder, and persecution.

For Hamas’s Sinwar, Deif and Haniya, the charges include extermination, murder, hostage-taking, rape and other acts of sexual violence, torture and cruel treatment.

The charge of extermination is defined in Article 7 of the Rome Statute as ‘the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’. It is distinct from the crime of genocide (Article 6), which must include the intent to destroy a national, ethnic, racial or religious group.

What has been the Response?

Both Israel and Hamas have rejected the charges against them, as well as the perception of equivalence between the two parties. Netanyahu called the warrant against him a ‘moral outrage of historic proportions’, and said he ‘reject[ed] with disgust the comparison… between democratic Israel and the mass murderers of Hamas’. Hamas, meanwhile, condemned the ICC prosecutor for drawing a seeming equivalence ‘between the victim and his executioner’.

Internationally, the US -- which is not a member of the ICC -- likewise rejected what it views as implied equivalence between Hamas and Israel, and President Joe Biden blasted the charges against Israel as outrageous. Some members of Congress are also seeking sanctions against the ICC in response.

In Europe, where the UK and all EU member states are parties to the ICC, responses were mixed. The UK’s Rishi Sunak criticised the warrants as ‘deeply unhelpful’, while France’s Foreign Ministry expressed support for the ICC and its ‘fight against impunity in all situations’.

What Happens Next?

The process now turns to three judges in the ICC’s pre-trial chamber, who will assess if there are reasonable grounds to believe war crimes and crimes against humanity have been committed. This assessment can take several weeks or even months, but in most cases, the warrants are granted.

It is possible that Israel will challenge the admissibility of the case based on the principle of complementarity, which ensures the primacy of domestic jurisdiction. That is, the ICC is meant to be a court of last resort, and cases are not admissible if there are credible investigations taking place at the state level. However, while Israel has initiated some investigations into incidents in Gaza, these have not included the alleged crime of starvation, and Netanyahu and Gallant themselves are unlikely to be investigated domestically.

If the warrants are ultimately issued, it is still unlikely that any of the individuals charged -- from Israel or Hamas -- would be arrested or stand trial, as the ICC does not carry out arrests, nor does it try people in absentia.

However, the 124 member states would be required to arrest and extradite any of those charged if they were to enter their territory, significantly constraining the travel and movement of the accused individuals. For Israel in particular, the warrants could also lead to further international isolation in the form of sanctions or embargos, and complicate the provision of military aid to Israel.

How Will the Warrants Affect the War in Gaza?

The impact of the ICC’s announcement remains to be seen. Israel is continuing its offensive in Rafah; 950,000 Gazans are estimated to have evacuated the southern city, while aid groups have warned of a humanitarian nightmare. Meanwhile, Israel has renewed its offensive in Jabaliya in northern Gaza in an attempt to head off the resurgence of Hamas.

Supporters of the warrants are hoping the charges will add pressure for both sides to end the conflict, for Hamas to release the hostages, and for Israel to increase access to humanitarian aid in Gaza. But critics warn that the warrants will have the opposite effect, complicating ceasefire negotiations and further entrenching the parties in their current positions.

How Will the Warrants Affect the Legitimacy of the ICC?

The warrants mark the first time an ICC prosecutor has sought the arrest of a democratically elected head of state who is supported by Western countries. The move will likely distance the US even further from the Court; though a non-member, the US has supported the ICC in some cases, including the 2023 investigation and charges against Vladimir Putin over the Ukraine war. But the move could also restore faith in the ICC from other corners, especially those who previously viewed the institution as biased or prone to double standards.

Indeed, in his statement, Khan emphasised the importance of the court’s impartiality, independence and equal application of the law. Not all parties will see it that way, however, and the political ramifications will likely reverberate well beyond the legal parameters of the Court.

The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.

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