(Bloomberg) -- When in May the chief prosecutor of the International Criminal Court said he was seeking the arrest of Israeli Prime Minister Benjamin Netanyahu, it sparked a furious response from Israel and its staunch ally the US.
On Nov. 21, the court followed through and issued warrants for Netanhayu and former Israeli Defense Minister Yoav Gallant, as well as Hamas military chief Mohammed Deif, who Israel says is dead.
In a statement, the ICC said Netanyahu needs to account for what it called “crimes against humanity and war crimes” in Israel’s war against Hamas in the Gaza Strip.
The Israeli government has denied such charges, saying its conduct of the war is in line with international law. Netanyahu’s office said the decision to issue the warrant was “motivated by anti-Semitic hatred of Israel.”
Separately, Israel faces a case in the International Court of Justice in which it’s accused of pursuing a military campaign against Hamas that is “genocidal in character.”
What is the International Criminal Court? What are its powers?
The ICC is the world’s first permanent, international criminal court. It was established in 2002 by a treaty called the Rome Statute to hold accountable those who commit acts of mass inhumanity. The court, based in The Hague, has a prosecutor who can investigate and propose charging individuals with war crimes, crimes against humanity, genocide and the crime of aggression.
The ICC can pursue cases when a country asks for an investigation within its territory or of its citizens, when the UN Security Council requests a probe, or when an ICC panel of judges authorizes an inquiry initiated by the court’s prosecutor. The prosecutor also must ascertain that domestic legal systems aren’t genuinely seeking justice. The court cannot impose the death sentence. Those sentenced to imprisonment serve their terms at the ICC’s detention center within a Dutch prison. Currently, 124 countries are parties to the Rome Statute. China, the US and Russia are among those that are not.
What is Netanyahu accused of?
ICC prosecutor Karim Khan accuses Netanyahu of, among other things, starvation of civilians as a method of warfare and intentionally directing attacks against a civilian population, both of which are war crimes.
The warrant was issued after a panel of ICC judges reviewed and accepted Khan’s application to pursue the prosecutions.
Khan had also been seeking an arrest warrant for Hamas leader Yahya Sinwar for a long list of crimes including murder, rape and torture. Sinwar was killed by Israeli forces in Gaza in October. Hamas is considered a terrorist organization by the US and the European Union.
Will Netanyahu actually be tried by the ICC?
Dutch Foreign Minister Caspar Veldkamp said the Netherlands was fully cooperating with the ICC and would execute the warrants for Netanyahu, Gallant and Deif if they enter Dutch territory.
However, it’s unlikely they’ll ever face trial. The ICC doesn’t permit trials in absentia, and the court is unlikely to gets its hands on Netanyahu or any other Israeli official. It relies on its member states to make arrests, and Israel is not a party to the ICC. The court has been unable to execute another warrant against Russian President Vladimir Putin. Being charged could limit the countries to which Netanyahu could travel without fear of arrest. Even some countries that are ICC members, such as Hungary, have argued that the court’s arrest warrants aren’t binding in their territory.
What has Netanyahu said about the ICC case?
When Khan announced he was seeking Netanyahu’s arrest in May, the Israeli leader called it “a moral outrage of historic proportions” that will cast shame on the court. “The ICC has no jurisdiction over Israel, and Mr. Khan’s actions will not stop us from waging our just war against Hamas,” he said. “Through this incendiary decision, Mr. Khan takes his place among the great antisemites of modern times,” Netanyahu said.
What have Israel’s allies said?
US President Joe Biden has called the application for an arrest warrant for Netanyahu “outrageous” and said the US would “always stand with Israel against threats to its security.” The US takes the position that the ICC doesn’t have jurisdiction in this case because, based on its own rules, it should have allowed Israeli investigations of misdeeds by its military forces to proceed before taking its own steps. European leaders were split over the move by the ICC prosecutor, with some welcoming the announcement and others criticizing it.
Who else has the ICC issued arrest warrants for?
ICC judges have issued 56 arrest warrants so far and detained 21 people in its detention center. Twenty-seven individuals, including Putin and Sudan’s ex-president, Omar al-Bashir, remain at large. Charges have been dropped against seven people due to their deaths. The judges have issued 11 convictions and four acquittals.
What’s happening with the genocide case?
The genocide case against Israel, which was brought by South Africa, is being considered by the International Court of Justice, which is also based in The Hague. Sometimes dubbed the “World Court,” the ICJ is the main judicial body of the United Nations. It settles legal disputes between member states over issues of international law. So while it can declare that a state violates rules of war or the Genocide Convention, it can’t try or punish anybody.
Genocide is broadly defined as the killing of members of a national, ethnic, racial and religious group, with the intent of completely or partly destroying that group. In January, South Africa’s government called upon the ICJ to rule Israel’s actions in Gaza to be genocide and order Israel to withdraw its troops. In an interim order on Jan. 26, the ICJ told Israel it must act immediately to prevent the killing of innocent Palestinians, but rejected South Africa’s demand for a cease-fire.
In March, the tribunal ordered Israel to ensure measures for the unhindered provision of urgently-needed basic services and humanitarian assistance to Palestinians throughout Gaza, increasing the capacity and number of land crossing points and maintaining them open for as long as necessary.
In October, South Africa filed a dossier with the ICJ containing what it said were “facts and evidence” to substantiate its case that Israel was committing a crime of genocide in the Gaza Strip.
The ICJ’s judgments are binding with no right of appeal. As a signatory under the UN Charter, Israel must abide by whatever the court rules, but there is no mechanism to enforce any such order. Other countries have chosen to ignore them in the past, notably Russia over its invasion of Ukraine.
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