• The International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant, together with a former Hamas commander, citing allegations of war crimes and crimes against humanity.

• The move comes after the ICC prosecutor Karim Khan announced on May 20 that he was seeking arrest warrants for alleged crimes connected to the October 7 attacks on Israel by Hamas and the Israeli military response in Gaza.

• Judges said there were reasonable grounds that the three men bore “criminal responsibility” for the alleged crimes committed from at least October 8, 2023 until at least May 20 – the day the Prosecution filed the applications for warrants of arrest.

• The arrest warrants followed the ICC’s rejection of Israel’s challenges to the Court’s jurisdiction.

• Netanyahu condemned the arrest warrant against him, saying Israel rejects with disgust the absurd and false actions by the court. 

• The warrant for Hamas military commander Mohammed Diab Ibrahim Al-Masri, more commonly known as Deif, also alleges crimes against humanity and war crimes, although Israel has said that he was killed in an air strike in Gaza in July.  

• The ICC said it was continuing to gather information regarding the reported death of Deif. As of November 15, his status is unknown.

• The case at the ICC is separate from another legal battle Israel is waging at the top UN court, the International Court of Justice (ICJ), in which South Africa accuses Israel of genocide, an allegation Israeli leaders staunchly deny.

International Criminal Court (ICC)

• The International Criminal Court (ICC) is an independent judicial body with jurisdiction over persons charged with genocide, crimes against humanity and war crimes.

• Situated in The Hague, Netherlands, the ICC is governed by the Rome Statute adopted by the UN in 1998. It entered into force in 2002 upon ratification by 60 States. 

• In addition, the Rome Statute also sets new standards for victims’ representation in the courtroom, and ensures fair trials and the rights of the defence. The court seeks global cooperation to protect all people from the crimes codified in the Rome Statute. 

• Currently, 124 countries are State Parties to the Rome Statute of the ICC.

• India has not signed the Rome Statute as it is not a member of the ICC. 

The court’s founding treaty, called the Rome Statute, grants the ICC jurisdiction over four main crimes. 

i) Crime of genocide: It is characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means: causing serious bodily or mental harm to members of the group.

ii) Crimes against humanity: Serious violations committed as part of a large-scale attack against any civilian population. The 15 forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, enslavement - particularly of women and children — sexual slavery, torture, apartheid and deportation.

iii) War crimes: They are grave breaches of the Geneva conventions in the context of armed conflict and include, for instance, the use of child soldiers, the killing or torture of persons such as civilians or prisoners of war, intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.

iv) The crime of aggression: It is the use of armed force by a state against the sovereignty, integrity or independence of another state.

Functioning of the ICC

• The ICC is composed of 18 judges, who are elected for terms of office of nine years by the Assembly of States Parties to the Rome Statute.

• As a judicial institution, the ICC does not have its own police force or enforcement body. Thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets and enforcing sentences.

• While not a UN organisation, the ICC has a cooperation agreement with the UN. When a situation is not within the court’s jurisdiction, the UN Security Council can refer the situation to the ICC granting it jurisdiction. 

• The ICC actively works to build understanding and cooperation in all regions, for example, through seminars and conferences worldwide. The court cooperates with both states parties and non-states parties.

• The Court does not replace national courts. It is a court of last resort. States have the primary responsibility to investigate, try and punish the perpetrators of the most serious crimes. 

• The Court will only step in if the State in which serious crimes under the Court’s jurisdiction have been committed is unwilling or unable to genuinely address those. The Court’s resources remain limited and it can only deal with a small number of cases at the same time. The Court works hand in hand with national and international tribunals.

How is ICC different from ICJ?

• The International Criminal Court (ICC) is established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community. 

• ICC is not part of the United Nations but they have a cooperative and complementary relationship.

• International Court of Justice (ICJ) is the principal judicial organ of the United Nations for the settlement of disputes between States. 

• The International Court of Justice and the International Residual Mechanism for Criminal Tribunals also have their seats in The Hague.

Can Netanyahu be arrested?

• Russia, Ukraine, Israel, the United States, China and India are not members of the 124-member ICC.

• All 124 member states of the ICC are obliged by the ICC’s founding statute to arrest and hand over any individual subject to an ICC arrest warrant if they set foot on their territory.

• But the court has no means of enforcing such an arrest. It has no police force, so the arrest of suspects must be carried out by a member state or a cooperative state.

• Despite the warrants, none of the suspects is likely to face judges in The Hague anytime soon. 

• The issuance of an ICC arrest warrant is not a formal travel ban. However, they do risk arrest if they travel to an ICC signatory state, which may influence indictees' decision-making.

• There are no restrictions on political leaders, lawmakers or diplomats from meeting individuals with an ICC arrest warrant against them. 

• For example, Russian President Vladimir Putin, who is wanted on an ICC warrant for alleged war crimes in Ukraine, recently visited Mongolia, a member state in the court but also a Russian ally. He was not arrested.

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