What is the ICC, and what would impending arrest warrants mean for Israel?

Israel suspects the International Criminal Court will soon indict Israeli officials, including Netanyahu, for its alleged crimes in Gaza. Will they have any real effect?
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Israel suspects the ICC will soon issue arrest warrants for Israeli officials, including Prime Minister Benjamin Netanyahu, pictured here speaking at a Likud Party event in Tel Aviv.

REUTERS/Amir Cohen

Recent Israeli media reports suggest that the International Criminal Court (ICC) is preparing to indict top Israeli officials, including Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and Israel Defense Forces chief of staff Herzi Halevi.

The ICC has yet to issue arrest warrants in response to Israel’s brutal assault on Gaza following the Oct. 7 attacks, though several rights groups — including Human Rights Watch, Amnesty International and Israel’s B’Tselem — have accused Israel of violating international law and committing war crimes, genocide and acting with impunity.

Israeli officials have already begun to sound the alarm over the potential indictments, accusing the ICC of antisemitism and warning that Israel will retaliate against the Palestinian Authority if warrants are issued. According to one report, Prime Minister Netanyahu went as far as requesting U.S. President Biden to prevent the ICC from issuing arrest warrants in a call between the two leaders in April. 

On May 3, the ICC’s Office of the Prosecutor issued a statement calling for an end to threats and intimidation of its staff. On May 6, the news site Zeteo reported that it obtained a letter from U.S. senators threatening retaliation against the ICC prosecutor. “Target Israel and we will target you,” the senators wrote, threatening to “sanction your employees and associates, and bar you and your families from the United States. … You have been warned.”

What is the International Criminal Court?

Established in 2002 under the Rome Statute, the International Criminal Court (ICC) is the first and only permanent international organization with the power to prosecute individuals for international crimes such as genocide, war crimes and crimes against humanity. Since its founding, the ICC has heard 31 cases and issued 10 convictions.

Based in The Hague, the court wields the jurisdiction to prosecute crimes committed by nationals of 124 member states or committed in the territory of member states. Neither the United States nor Israel are members of the ICC. Palestine became a member state in 2015. 

The ICC is entirely separate from the International Court of Justice, which is a U.N.-affiliated civil tribunal also based in The Hague that hears disputes between countries — including the genocide case brought by South Africa against Israel in December 2023.

The ICC’s current prosecutor, Karim Khan, was sworn into the role in 2021. Prior to that, he served as an assistant secretary-general of the U.N. and headed the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL in Iraq.

Does the ICC have jurisdiction in the case of Israel?

ICC prosecutor Karim Khan has said that any crimes committed on Palestinian territory — a member state of the ICC — would fall under the jurisdiction of the court. 

The court holds the power to issue arrest warrants over any potential war crimes committed by members of Hamas in Israel or by Israelis in Gaza, Khan has clarified. This includes the events unfolding in Gaza as well as the West Bank, Israel’s indiscriminate bombing and killing of Palestinian civilians, as well as the stoppage of food and aid supplies into Gaza. 

“As I stated five days after the attacks that took place on the 7th of October, we have jurisdiction over crimes committed by the nationals of state parties,” Khan said in October 2023. “And therefore that jurisdiction continues over any Rome Statute crimes committed by Palestinian nationals or the nationals of any state parties on Israeli territory, if that is proven.”

International Criminal Court prosecutor Karim Khan speaks at The Hague, Netherlands.
REUTERS/Piroschka van de Wouw

Under a principle known as complimentarity, the ICC can only be activated if states are unable or unwilling to themselves prosecute crimes of genocide, war crimes, crimes against humanity or the initiation of wars of aggression on their own territory. 

However, several human rights organizations have found that Israeli authorities have repeatedly obstructed external investigations while also failing to credibly investigate and prosecute serious allegations. 

Human Rights Watch has called for an ICC investigation to “fill the accountability gap” given the “pervasive climate of impunity;” B’Tselem has stopped referring allegations of IDF members’ human rights abuses to the IDF itself, calling its system of investigations a “whitewash mechanism;” and a U.N. commission has noted “procedural, structural and substantive shortcomings, which continue to compromise Israel’s ability to adequately fulfill its duty to investigate.”

What would ICC arrest warrants mean for Netanyahu?

Whether the ICC arrest warrants will result in meaningful action is unclear. But the warrants would represent the most substantial legal measure taken against Israel on the international stage since the onset of war in Gaza.

The ICC does not have a standing police force. After issuing arrest warrants, it must therefore rely on the 124 member states that signed the Rome Statute to carry out arrests in its stead. Once the ICC issues its arrest warrants, member states are legally obligated to take action against those who have been charged with international crimes. 

Although Israel is not a member of the ICC, an ICC indictment would still allow for Israeli officials to be arrested in member states’ territories. Most European countries are members of the ICC, which implies that many of Israel’s own allies, such as Germany, would bear a legal duty to arrest Israeli officials upon entry. This would undermine the legitimacy of Israel’s assault against Gaza and complicate its relationship with European allies who are bound by the ICC proceedings. 

Israeli Prime Minister Benjamin Netanyahu has stated that Israel will not put an end to its military actions, even if  the ICC issues arrest warrants. “No decision, neither in The Hague nor anywhere else, will harm our determination to achieve all the goals of the war — the release of all our hostages, a complete victory over Hamas and a promise that Gaza will no longer pose a threat to Israel,” he said.

But ICC warrants would seriously impair Netanyahu’s mobility and his diplomatic capabilities. A potential outcome could see Netanyahu facing restrictions on visiting the European Union, where member states would have a legal obligation to arrest him under the Rome Statute.

But Rana Mostafa, an assistant professor of public international law at Egypt’s Alexandria University, tells Analyst News that the ICC has faced problems in arresting perpetrators due to the lack of cooperation from state parties. That has been the case with Sudan’s former president Omar Al-Bashir, who was indicted over crimes committed in Darfur; both South Africa and Jordan failed to arrest him when he visited their countries.

“When it comes to exercising its jurisdiction on atrocities committed in Palestine, it has always faced criticism from the United States and most Western nations, including travel bans and financial sanctions in the Trump era,” Mostafa says. “It is very foreseeable that it will face similar problems in executing any arrest warrants for Israeli officials for atrocities committed in the past few months.” 

Regardless, ICC arrest warrants could damage Netanyahu’s already-fragile political standing. The head of state is already in hot water with Israeli civilians protesting for his removal and is standing trial due to corruption charges levied against him in multiple scandals.

Israel’s dubious claim to be the “only democracy in the Middle East” would also sustain serious damage. Some allied countries could respond by putting an end to military partnerships or reducing diplomatic ties, which would increase Israel’s international isolation.

What are the potential criminal charges against Israel?

Gaza’s heath ministry reports that more than 34,000 Palestinians have been killed and more than 77,000 injured since Israel began its war on Gaza on Oct. 7. (These numbers are incomplete counts as Gaza’s infrastructure buckles under siege.) Moreover, approximately 1.7 million people in Gaza have been displaced from their homes due to the ongoing war. 

ICC prosecutor Karim Khan has stated that the restrictions placed on the delivery of food and relief supplies into Gaza could be considered a crime within the Court’s jurisdiction. Analysts say this would be the most likely aim for Israeli war crimes charges; Khan has emphasized civilians in Gaza “must have access to basic food, water and desperately needed medical supplies, without further delay, and at pace and at scale,” even warning officials, “If you do not do so, do not complain when my Office is required to act.” 

Mostafa, the international law expert, says there is evidence that Israel has committed multiple international crimes, namely war crimes, crimes against humanity and even genocide.

“​​The indiscriminate attacks against civilians, hospitals, mosques, churches, the imposition of a total blockade on Gaza, the warnings against the entrance of any humanitarian aid through Egypt, the forced displacement of Gazans from the north to the south in 24 hours, the bombing of UNRWA schools, the killing of journalists — these acts implicate multiple war crimes and crimes against humanity,” Mostafa says.

Since March 2021, the ICC has had an open investigation into possible crimes committed by Israel in Gaza, the occupied West Bank and East Jerusalem beginning in June 2014. Last November, after the start of Israel’s assault in Gaza, five countries including Bangladesh, Bolivia and South Africa requested the ICC to investigate Israel’s conduct in the Palestinian territories. Khan then said that the ongoing investigation was expanded to include actions since Israel’s current war in Gaza began. Khan visited Israel and Ramallah in December as part of this investigation.

What is the U.S. response to the ICC’s possible arrest warrants?

“The ICC has no jurisdiction in this situation, and we do not support its investigation,” said White House press secretary Karine Jean-Pierre about the ICC’s investigation into Israel’s crimes. 

A recent report suggests that a bipartisan coalition of American senators met with senior ICC officials to express disapproval for possible impending warrants against Israel. According to the news site Zeteo, a group of 12 top Republican U.S. Senators including Mitch McConnell, Ted Cruz and Marco Rubio wrote a threatening letter to ICC Prosecutor Karim Khan, warning him: “If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States.” The letter also referenced the American Service-Members Protection Act, which authorizes the use of military force to liberate a U.S. citizen or citizen of an allied nation being held by the ICC in a provision known as the “Hague invasion clause,” and also threatened to retaliate against Khan himself and his family.

While the United States argues that the ICC cannot prosecute citizens of states that are not signatories to the Rome Statute, it contradicted this position in 2023 when the ICC issued an arrest warrant for Russian President Vladimir Putin. Though Russia is not a signatory to the Rome Statute, the U.S. supported the Putin warrant, saying it was justified, and shared details of Russia’s alleged war crimes in Ukraine with the ICC.

American and Israeli officials have also argued that the ICC does not have jurisdiction over Israel because Israel has an independent judicial system capable of investigating and prosecuting wrongdoing on its own. When the ICC opened a war crimes investigation in 2021, Israel called it a violation of the nation’s sovereignty

“Israel has a very strong legal system, very strong adjudication and law enforcement system, and it has pursued legal steps from the highest authorities in this land to any other citizen,” U.S. Secretary of State Antony Blinken said in a visit to Israel on May 1.

But some experts say domestic courts are unlikely to press criminal charges against members of their own government and military. Indeed, the Biden administration itself was considering sanctions against an IDF unit over multiple human rights violations against Palestinian civilians in the West Bank, suggesting the U.S. may have doubted Israel’s ability to hold the unit accountable.

The U.S. has long opposed Palestinian efforts to involve the ICC over allegations of Israeli violations of international law, claiming that doing so would undermine the peace process and that all negotiations should happen between Israeli and Palestinian leaders. When Palestine joined the ICC in 2015, the U.S. State Department condemned the move as an “escalatory” step that “badly damages the atmosphere with the very people with whom they ultimately need to make peace.”

Khadija Ahmad is a staff writer at Analyst News. Staff writer Ayesha Malik also contributed reporting. This explainer has been updated with additional information as of May 6.