What is the ICC, the Global Court Israel Fears May Indict Netanyahu?

The Washington Post / Sarah Dadouch

12:46 JST, April 30, 2024

Prosecutors from the International Criminal Court have not issued any arrest warrants in response to the Oct. 7 Hamas attack on Israel and the war in Gaza. But over the past few days, amid a preemptive backlash from government officials, Israeli media has reported that arrest warrants from the global court were imminent against senior Israeli figures.

Prime Minister Benjamin Netanyahu said Friday that attempts by The Hague-based court to undermine Israel’s right to self-defense would never be accepted, arguing that it would “set a dangerous precedent that threatens the soldiers and officials of all democracies.” On Sunday, Israeli Foreign Minister Israel Katz cautioned Israeli embassies around the world to bolster security in immediate preparation for “a wave of severe antisemitism” if the arrest warrants were to be issued.

The court, known widely as the ICC, has not confirmed any reports that it will issue arrest warrants against Israeli officials. Experts say that if the court were to issue such warrants, they would almost certainly also target militants in Gaza for crimes committed during the Hamas-led attacks of Oct. 7.

On Monday, White House press secretary Karine Jean-Pierre told reporters that the United States did not support the ICC’s investigation. “We don’t believe that they have the jurisdiction,” Jean-Pierre said.

Here’s what to know about the court and its arrest warrants.

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What is the International Criminal Court?

The ICC is the only permanent international court that wields power to prosecute individuals for genocide, crimes against humanity and war crimes.

The court, which is based in The Hague and legally independent of the United Nations, was set up in 2002 after more than a decade of efforts to establish a permanent tribunal that can hold individuals accountable for atrocities.

The need for such a permanent court was especially highlighted after the conflicts in Bosnia-Herzegovina, Croatia and Rwanda in the early 1990s, which saw mass commissions of crimes against humanity, war crimes and genocide. Until the ICC was established, ad hoc temporary tribunals addressed such crimes.

The ICC is separate from the International Court of Justice, also based in The Hague, which is a judicial body of the United Nations that was established after World War II to settle disputes between countries. Separately, the ICJ is hearing a case brought by South Africa that alleges that Israel is violating international law by committing and failing to prevent genocidal acts. (Israel rejects the allegations.)

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Where does the ICC have jurisdiction, and how would arrests of Israeli officials take place?

The ICC does not control a police force and therefore depends on its 124 member states to carry out arrest warrants against those accused of mass crimes. Most European countries are party to the court’s statute and therefore have a legal obligation to arrest any individual against whom the ICC has issued an arrest warrant. The ICC prohibits trying defendants in absentia, with some narrow exceptions.

Neither Israel nor the United States are member states to the ICC, but if the warrants are issued, Israeli officials would face the risk of arrest in allied countries.

In 2015, the Palestinian Authority joined the ICC as a member, eliciting fury from Israeli officials and threats that action brought by the Palestinian body to the ICC would be perceived as a hostile act. Israel also at the time pushed allies to cut funding to The Hague-based court.

In the near aftermath of Hamas’s Oct. 7 operation, which killed about 1,200 in Israel, and Israel’s military response, which has killed more than 30,000 in the Gaza Strip, according to the Gaza Health Ministry, ICC prosecutor Karim Khan addressed the issue of the ICC’s jurisdiction.

“Any crimes committed on the territory of Palestine by any party” falls under the jurisdiction of the court, Khan said, including current events in Gaza and the West Bank. The impediments placed on the delivery of relief supplies into Gaza “may constitute a crime within the Court’s jurisdiction,” he said, adding that Israel must demonstrate “discernible efforts, without further delay” to make sure civilians receive basic life necessities.

Israel rejects the idea that the ICC has jurisdiction over Israelis, said David Bosco, a professor at Indiana University and author of an ICC-focused book, “Rough Justice.”

“The Israeli position is, because Israel hasn’t joined the court, there is no jurisdiction over its citizens,” he said – a view also shared by Russia, he added.

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What has happened after previous warrants?

There have been instances of member states ignoring an ICC arrest warrant: In 2015, South Africa did not arrest Sudanese President Omar Hassan al-Bashir during his visit to the country, a decision that South Africa’s Supreme Court of Appeal later ruled was unlawful. Jordan also did not arrest Bashir during his visit in 2017.

“Some countries are willing to flout their obligations to the court,” Bosco said, “but it’s obviously a controversial issue whenever it happens.”

While Bashir evaded arrest in some member states, the warrants still place limitations on travel on those facing them.

In 2023, the ICC issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s commissioner for children’s rights, for bearing individual responsibility for the unlawful deportation and transfer of children from occupied areas in Ukraine after Russia’s invasion of the country.

Russia does not fall under the ICC’s jurisdiction, but the decision sharply restricted Russian officials’ mobility in Europe, Africa, Asia and Latin America. Putin was also the first head of state of a permanent member of the U.N. Security Council to face an ICC arrest warrant.

The reputational blow, however, is likely to be less damaging for Putin than it would be for Israeli officials.

“Israel is a democracy, and one would hope that any serious, credible, and independently investigated allegations of international crimes would spur a genuine, real, and tangible commitment on the part of the state to peace with Palestinians and accountability for those who wantonly disregard international law,” said Mark Kersten, an assistant professor at the University of the Fraser Valley, and senior consultant at the Wayamo Foundation.

While the United States traditionally holds the position that the ICC cannot investigate citizens of states that have not signed up to the Rome Statute of the ICC, it abandoned this view by supporting the ICC warrants against Putin, as well as the ICC’s investigation into atrocities committed by Myanmar’s forces against the Rohingya people, continued Kersten.

“The court will undoubtedly lose support from some key states, particularly the United States, that although not a party to the court’s jurisdiction, has shown more willingness to engage with the court since Russia’s war against Ukraine,” said Mark Ellis, executive director of the International Bar Association.

“That supportive attitude would likely end,” Ellis added. “Of course, that is not a reason for the court to hold off issuing arrest warrants, but diplomatic relations will be significantly altered.”