Israeli officials have begun expressing fears in recent days that the International Criminal Court could issue arrest warrants for senior Israeli politicians and military officials as the war between the Jewish state and Hamas in Gaza approaches its eighth month.
The ICC has not confirmed the Israeli claims, saying that while it is conducting an “ongoing, independent investigation into the situation in the State of Palestine” in 2021, it does not provide “ongoing commentary” or respond to “speculation in media reports.”
Given the lack of confirmation – and the relatively slow pace at which the ICC has proceeded in other cases – there has been speculation in the Israeli media that the hand-wringing is based on political calculation by the country’s leaders, who are and abroad are under increasing pressure abroad instead of legal danger.
But the claims have drawn renewed attention to the possibility of legal action related to the Gaza war, which has already sparked a separate, high-profile case at the International Court of Justice.
Why is the ICC investigating the war in Gaza?
The ICC was founded in 2002 and has the power to prosecute individuals for crimes against humanity, genocide and war crimes. Its jurisdiction extends to crimes committed within the territory and by citizens of the 124 states that have signed its statute.
Palestine acceded to the law in 2015, but Israel did not and therefore does not recognize the court’s jurisdiction. However, after years of legal wrangling, the ICC concluded that it had jurisdiction over events in the Palestinian territories and opened an investigation into the “Situation in the State of Palestine” in 2021.
The original scope of the inquiry included investigating both alleged crimes committed during and since an earlier war between Israel and Hamas in 2014, and Israel’s promotion of Jewish settlements in the occupied West Bank, which the Palestinians see as the centerpiece of a future state strive for.
However, the court’s prosecutor, Karim Khan, confirmed in November that the investigation would also cover the current war sparked by Hamas’ surprise attack on Israel on October 7.
Prosecutors at the International Criminal Court are investigating war crimes allegations not only against Israel, but also against Hamas and other militant groups active in these areas.
What could be the reasons for ICC arrest warrants?
Sheila Paylan, an expert in international law and human rights, said that if the ICC issues arrest warrants against Israeli officials over events since Oct. 7, they would likely be related to restrictions Israel has imposed on humanitarian aid entering the Gaza Strip. and with the indiscriminate killing of civilians.
In the early days of the war, Israeli officials promised to impose a “siege” on the Gaza Strip. But more recently they have insisted they are not placing limits on the amount of aid entering the enclave. They also deny the indiscriminate killing of civilians.
However, humanitarian organizations say the amount of aid coming into Gaza is only a fraction of what is needed, and Palestinian officials say the majority of the more than 34,000 people killed by Israel in Gaza are women and children.
Palestinian lawyers who testified in court said any arrest warrants would most likely be issued to facilitate the court’s investigation. For example, after collecting evidence from Palestinians on various alleged war crimes, prosecutors formally asked Israeli officials to provide their own evidence on the matter. Should Israel reject this request, the court has the authority to request their detention in order to carry out its mandate and fully investigate the alleged crimes.
Paylan said she expected any arrest warrants issued by the court would also be directed against Hamas, which was involved in the Oct. 7 attack in which militants killed 1,200 people and took 250 hostage, according to Israeli officials.
What impact would ICC arrest warrants have on Israeli officials?
Israeli officials subject to an ICC arrest warrant would be effectively barred from traveling to any of the 124 countries that have signed the Court’s statute, as those states would be obliged to arrest them and hand them over to the court. These countries include the United Kingdom, most European and Latin American countries, and numerous countries in Africa and Asia.
However, because the ICC does not have its own enforcement mechanism, it relies on member states to take action – and that does not always happen. In 2015, South Africa refused to arrest Sudanese leader Omar al-Bashir during his visit to the country, despite having an ICC arrest warrant against him.
Legal experts said that in addition to the direct impact of any arrest warrants, the mere fact that the ICC issued them could have knock-on effects, such as making other countries less willing to supply Israel with weapons or more willing to impose sanctions impose their own.
“It could be a reason why other countries might want to impose sanctions, but it is not a necessary consequence,” Paylan said.
What other legal challenges does Israel face?
The International Court of Justice – the United Nations’ highest court that hears cases against countries rather than individuals – is already hearing a separate South African case accusing Israel of committing genocide against Palestinians in Gaza.
Israel has vehemently denied the accusation and it is unlikely that the court will reach a final decision on the matter in the next few years. However, it has imposed a series of interim orders against Israel, including an order in March to ensure more food and humanitarian aid reaches Palestinians in Gaza, and warned that famine was “on the horizon” in the enclave.
Israel also faces challenges outside the courtroom. According to a memorandum issued by US President Joe Biden earlier this year, Secretary of State Antony Blinken must inform Congress by May 8 whether Israel’s claims that it does not use US weapons in violation of international law are credible. If he finds that this is not the case, the government could theoretically suspend future arms shipments.
Could the legal challenges cause Israel to change course?
Israeli leaders insist the ICC will have no influence on how they fight the war in Gaza. Even as he expressed fears Sunday that arrest warrants were possible, Foreign Minister Israel Katz said Israel “will not bow or be deterred” and vowed that the country would “continue to fight” until it destroys Hamas and releases Hamas secured the approximately 130 hostages that Hamas is believed to still be holding in Gaza.
Chimène Keitner, a professor of international law at the University of California Davis School of Law, said that while ICC arrest warrants “could be an impetus for domestic courts to become more active,” she did not expect this to happen in Israel would happen while Israeli hostages were still being held in Gaza and while the current government was in power.
Additional reporting by Andy Bounds in Brussels