Filenews 23 May 2024 - by Jill Goldenziel
The Prosecutor of the International Criminal Court recently announced that he is seeking arrest warrants for the leaders of Israel and Hamas for war crimes and crimes against humanity. Here are five things you need to know about this request.
1. The ICC case is not about genocide
The charges relate to war crimes and crimes against humanity, not genocide. The charges against Hamas leader in Gaza Yahya Sinwar, Al-Qassem Brigade leader Mohammed Deif and political leader Ismail Haniyeh include charges of mass extermination as a crime against humanity, hostage-taking, rape and other acts of sexual violence and torture. The charges against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Galad include causing famine, persecution and mass extermination as crimes against humanity, and deliberate attacks on civilians.
Crime against humanity accused of "extermination" is more broadly defined as "the mass murder of a demographic group." Extermination may include "deprivation of access to food and medicine, resulting in the destruction of part of a population." It differs from genocide, which requires a high threshold of intent to destroy a racial, ethnic, religious or national group in whole or in part.
The warrant request was made in a public statement detailing the alleged crimes. Other leaders of Hamas and Israel may be charged with the same crimes. Additional charges, including genocide, could still be added to the warrants. The prosecutor's statement did not mention Hamas' responsibility for war crimes against Gaza's civilian population, such as the use of human shields, but such charges could be added later.
2. The ICC Prosecutor's request for arrest warrants may not lead to trial
The request by ICC prosecutor Karim Khan is the start of a multi-year process that may or may not end in the arrest and trial of the named suspects. The Pre-Trial Chamber will then assess whether there are "reasonable grounds" to believe that suspects have committed a crime falling within the jurisdiction of the Court. In the past, the Pretrial Chamber took several months to decide whether to issue warrants.
Warrants can remain sealed until the moment of arrest. This means that suspects are virtually no longer able to travel to the 124 countries that are parties to the ICC Statute and are therefore obliged to arrest them and hand them over to the Court. These countries include most of Europe, but not Israel's closest ally, the US, nor Hamas' closest backers, Qatar and Iran.
If a suspect is arrested and taken into custody at the ICC, he or she will have an initial appearance before the ICC immediately upon arrival in The Hague. The Pre-Trial Chamber will confirm the identity of the suspect, make sure he understands the charges and read his rights. About six to twelve months later, the Court will hold a hearing to confirm the charges, at which the Prosecutor must present sufficient evidence to justify a trial. In exceptional cases, such as if the suspect has absconded or cannot reasonably be found, the court may hold the hearing to confirm the charges without the suspect present. The Pre-Trial Chamber will then decide whether there is "sufficient evidence to substantiate reasonable grounds to believe that the person committed each of the crimes of which they are charged." The decision to confirm the charges is usually issued in several months. Only then is a trial date set, usually nine months to two years later.
3. Israel could expel its leaders on its own
The ICC is a court of last resort. It operates on the principle of complementarity, undertaking investigations and trials only when a state's national legal system is unable to do so. The prosecutor's statement accused Israel of failing to investigate its officials for the alleged crimes. Israel has claimed to have launched some investigations against its officials for crimes related to the Gaza war. Theoretically, Israel or the alleged suspect could challenge the case before the Pre-Trial Chamber. The case would not be admissible if the suspect is being investigated or tried within the country on essentially the same charges for which he is brought before the ICC. The ICC case can continue if the domestic proceedings are inconsistent with a genuine attempt to bring the individual to justice.
4. The International Criminal Court is not the International Court of Justice
The ICC investigation and proceedings are separate from the case of the Genocide Convention against Israel at the International Court of Justice. The ICC hears cases against individuals accused of the most serious crimes of concern to the international community. It has jurisdiction over only four crimes: genocide, war crimes, crimes against humanity and crimes of aggression.
Instead, the International Court of Justice hears cases between states, such as South Africa's claim that Israel violated the Genocide Convention through actions related to its military operation in Gaza. The International Court of Justice also hears opinions submitted by UN bodies. It held hearings in February this year on an opinion referred by the UN General Assembly on "Legal consequences arising from Israel's policies and practices in the occupied Palestinian territories, including East Jerusalem".
The two courts are often confused by non-experts – not just because both are based in The Hague and have jurisdiction over the crime of genocide. My help to remember which is which: The International Criminal Court tries criminals – and criminals are usually individuals.
5. The prosecutor's request is unlikely to change this war, but it may change others
Aside from restricting the suspects' travel, the charges are likely to have little practical impact on the current war. Netanyahu remained undeterred in his decision to invade Rafah and defy the ICC, calling the prosecutor's statement a "disgrace" and a "total distortion of reality." The threat of arrest warrants is unlikely to deter Hamas leaders as well.
The requests for the arrests may increase pressure for some states not to provide military assistance to Israel. Germany, in particular, has been a staunch supporter of both the ICC and Israel and may face some political tensions. U.S. officials, however, condemned the prosecutor's announcement.
If the cases proceed, the ICC will have to develop new jurisprudence on crimes against humanity and war crimes, in particular on the concept of unnecessary suffering and the crime of causing famine, which has never reached the Court. The way in which the Court defines these crimes could have implications for the conduct of future wars.
