The International Criminal Court (ICC) received a request for arrest warrants for three Hamas leaders, including Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, from the Office of the Prosecutor of the ICC on May 20. The request pertains to actions carried out subsequent to October 7, 2023.

The action taken by Prosecutor Karim Khan has elicited a strong response from both Israel and the United States. Both nations accuse the International Criminal Court (ICC) of exceeding its jurisdiction and putting Jewish leaders on the same footing with a terrorist organization. Criticism have also been expressed from European nations.

From a legal point of view, the picture is more complex. Although the circumstances are very different, it is a remarkable step, as was the arrest warrant issued last spring for Vladimir Putin and Maria Lvova-Belova.

What is an arrest warrant?

In order to establish guilt or lack thereof, the ICC rules mandate that a person must appear before the court, making absentia trials impossible. To do this, the prosecutor must request the Pre-Trial Chamber, which decides whether there are sufficient grounds to believe that the person has committed the offense and that arrest is necessary.

Thus, it is by no means a question of the person's guilt or lack of guilt that is decided at the hearing of the arrest warrant, but rather a reasonable basis to believe that the person may be guilty of the events that took place. Suppose the court so concludes and issues an arrest warrant. In that case, it is up to the Member States of the court to arrest the persons concerned on their territory and bring them before the court. At the moment, the Office of the Public Prosecutor has submitted a request to the Pre-Trial Chamber, but there has been no decision yet.

The content is not the right of a state to self-defense

Prosecutor Khan's move to simultaneously file arrest warrants for three Hamas leaders, Yahya Sinwar (Hamas leader), Mohammed Al-Masri (commander-in-chief of Hamas's military wing), and Ismail Haniyeh (head of Hamas's politburo), as well as for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, has led to accusations that the ICC prosecutor is placing the Jewish state's leaders on the same footing as a terrorist organization and so calling into question the right of the State of Israel to defend itself.

In order to make such an assessment, it is also necessary to look at the content of the imputed acts. These do not overlap.

The request for the arrest of Hamas leaders is based primarily on crimes against humanity and war crimes related to the October 7 and subsequent attacks – destruction, killing, hostage-taking, rape, torture, cruel, inhuman and degrading treatment. In a number of cases, as both war crimes and crimes against humanity.

Explanation: a war crime requires that the act occur in the context of and in relation to an armed conflict, whether international (between two or more states) or non-international (between a state and a group); crimes against humanity may also occur in peacetime, but they must be committed on a large scale or in a systematic manner.

The prosecutor asserts that the acts occurred within the framework of both the international armed conflict between Palestine and Israel, as well as the non-international armed conflict between Israel and Hamas. Different crimes, like murder or rape, can occur simultaneously as war crimes and crimes against humanity.

However, the charge against Israeli leaders places significant weight on acts of targeted harm against civilians, including the use of starvation as a method of warfare, deliberate attacks against civilians, causing death by starvation, and persecution. The ICC prosecutor has emphasized that it is the actions directed against the Palestinian civilian population that are decisive.

The accusation does not relate to Israel's use of force in self-defense as such, but to its decisions to close Gaza crossings and restrict humanitarian access to water and electricity supplies. Incidents involving the deaths of humanitarian workers or civilians waiting for humanitarian assistance have also been reported.

We must make it clear that international law distinguishes between the justification for the use of armed force and the rules of warfare once a conflict has already begun, in response to the argument that this restricts Israel's right to defend itself. These are two strictly distinct categories.

In the present case, there is no question as to whether Israel should have used armed force to defend itself. The inquiry pertains to the methods employed in warfare, because warfare is also subject to certain rules, one of which is the protection of civilians.

Thus, the ICC Prosecutor's request is not really about the right of the State of Israel to use force to defend itself, but about the methods chosen by its leaders, which may have targeted and wounded, above all, the civilian population.

Whatever the reason for initiating hostilities, hostile parties should respect the rules of warfare and avoid harming civilians to the greatest extent possible, rather than using them as a means to achieve military objectives. The reference to the other side not adhering to the rules does not apply here, nor does it grant them a free hand.

The court can only determine the veracity of the suspected offenses after arresting, detaining, and bringing the named individuals before the court.

A strong backlash

Last spring, the court announced the issuance of an arrest warrant for Putin and Lvova-Belova after the court had already ruled. In the current case, there is no decision yet. It is noteworthy that Prosecutor Khan in this case decided to inform the public immediately upon the handover of the application.

As early as 2015, Palestine acceded to the tribunal and submitted a request for an investigation into possible crimes committed on Palestinian territory, but a formal investigation did not begin until 2021. Consequently, the Court also has jurisdiction in the case: the ICC has jurisdiction over acts committed on the territory of a Member State (Palestine) or by a national of a Member State.

At the time, the court's ruling on the mere existence of jurisdiction drew strong criticism from the U.S. and Israel. Neither the U.S. nor Israel are members of the court, and U.S. policy towards the court has been rather aloof or outright hostile.

In 2002, President George W. Bush's administration withdrew its signature from the Rome Statute – the court's founding treaty – and pressured other countries not to cooperate with the court in a variety of ways, including withholding military and economic aid to countries.

In 2020, the United States imposed sanctions on court officials in relation to investigations into Afghanistan and Israel in particular. In 2022, the warming of relations over Russia's aggression against Ukraine and the opening of investigations into crimes committed by Russian forces and leaders led to significant cooperation between the U.S. and the court.

However, with the armed conflict in Gaza and the ongoing investigation, the winds have changed again. Prosecutor Khan has made a number of visits to Israel, and apparently the Jewish state has known for some time that the prosecutor's office is also investigating their activities. In this context, reports emerged some time ago that Israel was trying to persuade the U.S. to take action again and put pressure on the court to drop its investigation of Israeli leaders. At the time, this was still speculation in the public eye.

It can be presumed that, among other things, the prosecutor's decision to inform the public already at the stage of the application for the arrest warrant was an attempt to "clear the air" with regard to the speculation as to whether, or to what extent, the activities of the Israeli troops would receive attention. Conversely, the prosecution may have taken this action to showcase the judiciary's independence.

Over the course of its existence, the ICC has been under constant criticism for the selectivity of its investigations; a large number of cases involve African countries; the court made questionable decisions in the Afghanistan investigation; and the investigation into the war in Ukraine, which has led to unprecedented levels of cooperation and a surge in support, is in line with Western political attitudes.

The current course has undermined both the ICC's authority in the eyes of the rest of the world and the West's sincerity about international law uniformity.

Thus, from the perspective of the legitimacy of the court, responding to external political pressure (bearing in mind that Israel and the US are not members of the court) is vital because of the investigations. Only time will tell whether the prosecutor's decision to file the arrest warrants for Hamas and the Israeli leaders together will contribute to the enforcement of the institution's independence and international law more broadly, as well as what impact it will have on the effectiveness of a particular investigation. First, it is worth waiting to see what the Pre-Trial Chamber's decision on whether or not to issue an arrest warrant will be.

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