Although the ICC’s arrest warrants for Israeli leaders are unlikely to end in arrests, their issuance confirms that the noose of international law on Israel is tightening
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Ending the impunity for perpetrating war crimes and crimes against humanity has always been a high priority for the international community. It is with this objective that the Nuremberg and the Tokyo trials were held to book those who had committed mass crimes during the Second World War. The International Criminal Tribunal for the erstwhile Yugoslavia and Rwanda was similarly created in the 1990s to prosecute criminals who committed war crimes during the armed conflicts. However, these judicial bodies were not permanent courts. They had a localised impact due to the restrictions of time and place.
The international community’s desire to establish a permanent international court to hold actors accountable for egregious crimes was accomplished in 1998 when 120 countries adopted the Rome Statute that created the International Criminal Court (ICC). Although the ICC has a global remit, in the last two decades or so of its existence, it has acquired a reputation for only going after third-world leaders and citizens (predominantly from Africa), or those who are antagonistic to the West. A few countries like Burundi have withdrawn from the Rome Statute and South Africa threatened to quit.
The International Criminal Tribunal for the erstwhile Yugoslavia and Rwanda was similarly created in the 1990s to prosecute criminals who committed war crimes during the armed conflicts.
This background is critical to appreciate the arrest warrants issued by the ICC’s Pre-Trial Chamber (PTC) against Benjamin Netanyahu, Israel’s Prime Minister, and Yoav Gallant, Israel’s former Defence minister for allegedly committing war crimes in Gaza. Rejecting Israel’s challenge to the arrest warrants, the PTC found that there are “reasonable grounds to believe” that Netanyahu and Gallant each bear criminal responsibility for the war crime of starvation as a means of warfare in Gaza, and the crimes against humanity of murder, persecution, and other inhumane acts committed from 8 October 2023 until 20 May 2024. These arrest warrants were requested by ICC’s Prosecutor, Karim Khan, in May 2024.
This is the first time in the ICC's history that arrest warrants have been issued against leaders of a regime close to the West. Unsurprisingly, the United States (US) has rejected the ICC's warrants.
Two preliminary questions need to be answered. First, how can the ICC prosecute heads of state who, under international law, enjoy immunity from criminal proceedings at foreign or international courts? The answer lies in Article 27(1) of the Rome Statute, which provides that the “Statute shall apply equally to all persons without any distinction based on official capacity.” It further clarifies that “official capacity as a Head of State or Government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility.” Article 27(2) of the Rome Statute further asserts that immunities attached to a person due to official capacity, whether under international or municipal law, will not bar the ICC from having jurisdiction over such a person. This principle has been upheld by the ICC in the Jordal Referral re Al-Bashir Appeal case, which was decided in 2019.
If a crime is committed on an ICC member country’s territory, the court can exercise jurisdiction on that crime, even though the perpetrator belongs to a non-ICC member country.
The next preliminary question is how can the ICC act against Israeli leaders when Israel is not a member of the ICC. The answer is given in Article 12(2)(a) of the Rome Statute, which accounts for territorial jurisdiction. According to this principle, if a crime is committed on an ICC member country’s territory, the court can exercise jurisdiction on that crime, even though the perpetrator belongs to a non-ICC member country. Since Palestine is an ICC member, the crimes committed by Israeli soldiers in Gaza fall under the court's jurisdiction. Likewise, Hamas' conduct in Israel falls within the court's jurisdiction as well, which led the ICC to issue an arrest warrant against Hamas leader, Mohammed Diab Ibrahim Al-Masri for the war crimes committed on Israeli territory.
Going by past precedent, it is highly unlikely that the Israeli leaders will be arrested and handed over to the ICC to face trial. For instance, the ICC issued an arrest warrant against Russian President Vladimir Putin in March 2023. However, President Putin has still not been arrested, though his international travels in the last 18 months or so have been severely restricted. This is because once the ICC issues an arrest warrant against any individual, all the 123 ICC member countries (which does not include India) are under a legal obligation to arrest the person concerned whenever s/he is in their jurisdiction and have to hand them over to the ICC. Critical to note that President Putin did travel to Mongolia, which is an ICC member, in September 2024, but was not arrested for political reasons.
The ICC issued an arrest warrant against Bashir for allegedly committing war crimes, crimes against humanity and genocide in Sudan since 2009.
The same has been the fate of Sudan's former President, Omar al-Bashir. The ICC issued an arrest warrant against Bashir for allegedly committing war crimes, crimes against humanity and genocide in Sudan since 2009. After the issuance of arrest warrants, Bashir visited several ICC member countries like Chad, South Africa, and Jordan, but none of these countries arrested him. This reveals two things. First, the execution of ICC arrest warrants is at the mercy of the member states. The ICC does not have its own police force that it can deploy to arrest individuals. If states do not cooperate, there’s very little that the ICC can do. Second, states that fail to comply with the legal obligation of executing an arrest warrant often get away without having to pay a significant legal price.
Thus, the practical impact of the arrest warrant issued against the two Israeli leaders will be that it would severely cripple their international travel, at least to countries that are ICC members. Even if it is unfathomable that Netanyahu and Gallant would get arrested and handed over to the ICC to face trial, the issuance of arrest warrants is a remarkable development in international law. It is a major legal and diplomatic blow to Israel, especially in the backdrop of two major International Court of Justice rulings involving Israel in the last year. First, the ICJ, in July 2024, in the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including the East Jerusalem case, held that Israel’s continued occupation of the Occupied Palestinian Territory (OTP) is a violation of international law and that Israel must withdraw from the OPT as rapidly as possible. Second, the ICJ, in a case brought forth by South Africa in January 2024, ruled that it was plausible that Israel was committing genocide in Gaza. Whether that is, indeed, the case or not is yet to be judicially determined. In short, the issuance of arrest warrants against the two Israeli leaders confirms that the noose of international law on Israel is tightening.
Prabhash Ranjan is Professor and Vice Dean (Continuing Education) at Jindal Global Law School, O. P. Jindal Global
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Prabhash Ranjan is Professor and Vice Dean (Continuing Education) at Jindal Global Law School O P Jindal Global University Sonipat. ([email protected]) Views are personal.
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