The leaderships of Israel and Hamas seem to agree on one issue. They reject the request to the ICC for an arrest warrant against them for possible war crimes. The Prosecutor General of the International Criminal Court (ICC) Karim Khan requested the issuance of arrest warrants against both Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallad . The reason is possible war crimes and crimes against humanity, for which the two politicians may be responsible. The ICC prosecutor also requested arrest warrants for the Palestinian leader Yahya Shinuwar, Foreign Minister Ismail Haniya and Shinuar’s deputy Mohammed Deif in connection with the October 7, 2023, terrorist attacks in Israel that triggered the war between Israel and the Hamas organization. We remind you that Hamas is classified as terrorist by various Western countries, including the USA and the EU.

It should be noted that the International Criminal Court in The Hague only conducts investigations against individuals. It is initiated only when a person is suspected of committing one of four basic criminal offences: genocide, war crimes, crimes against humanity and war of aggression.

The ICC has already been conducting investigations since 2021 against Israelis, who are allegedly involved in possible war crimes. At the same time, however, the court is investigating, according to its own announcement, against Hamas fighters with the same charge. At the same time, it continues its investigations into acts of violence by Israeli settlers in the West Bank.

Israel does not recognize the ICC

The International Criminal Court takes initiative only when states are either unable or unwilling to prosecute the aforementioned crimes at the national level. At the moment, however, it is considered unlikely that the Israeli judiciary will initiate criminal proceedings against the prime minister, his ministers or the leadership of the army and because Israel is in a state of war.

In addition, either the perpetrator’s home state must recognize the court or the country where the alleged crimes were committed. Israel does not recognize the International Criminal Court. The Palestinian territories, however, have signed the founding treaty of the ICC. Apart from Israel, the International Criminal Court is not recognized by the USA, China, Russia, India, Iran and almost all Arab states.

It should be noted that so far, there is simply a request to the ICC for an arrest warrant. But even if a warrant is issued, it does not constitute a verdict. It is primarily an indication that the Court is taking seriously the allegations against a suspect in order to investigate them.

Do not confuse the ICC and the International Court of Justice

According to its website, the ICC only issues an arrest warrant if judges deem it necessary for the suspect to attend the trial. The presence of the suspect is necessary for the judicial process. But because the International Criminal Court does not have its own police to arrest suspects, it is unlikely that members of the Israeli government will stand trial in The Hague.

An arrest warrant would, however, severely restrict the international movements of Israel’s prime minister and defense minister, as well as Hamas leaders, as is already the case with Russian President Putin. All 124 parties to the ICC are required to arrest wanted persons on their territory and bring them to justice.

The ICC’s investigations should not be confused with the appeal of some countries against Israel for genocide at the International Court of Justice in The Hague. South Africa, among others, has appealed against Israel over the high number of deaths in the war in the Gaza Strip. The International Court of Justice is also based in The Hague, but has exclusive jurisdiction over disputes between states. At the end of January this year, the International Court of Justice in The Hague recognized the “threat of genocide in the Gaza Strip”, but rejected South Africa’s appeal that Israel immediately suspend all hostilities.

Editor: Stefanos Georgakopoulos