The ICC arrest warrants against Deif, Netanyahu and Gallant explained

Why has the Court issued arrest warrants, and what happens next?

Explainer Updated 26 November 2024 5 minute READ

Dr Talita Dias

Senior Research Fellow, International Law Programme

On Thursday, 21 November 2024, the International Criminal Court (ICC) decided to issue arrest warrants against Hamas and Israeli leaders, following a request made by ICC Prosecutor Karim Khan KC in May 2024. 

The warrants were issued against the Commander-in-chief of Hamas’s military wing, Diab Ibrahim al-Masri (known as Deif), for war crimes and crimes against humanity in Israel and Gaza during and after the attack on 7 October 2023. Arrest warrants were also issued for Israeli Prime Minister Benjamin Netanyahu and his former defence minister, Yoav Gallant, in respect of war crimes and crimes against humanity alleged to have been committed in Palestine in response to the Hamas attack.

What is the ICC?

The ICC is the first and only permanent international criminal court. It is a court of last resort aimed at deterring and ensuring accountability for the most serious crimes of concern to the international community – genocide, crimes against humanity, war crimes, and since 2018, the crime of aggression. 

It is intended to be complementary to states’ domestic criminal justice systems: the ICC may only exercise its jurisdiction when a state is either unwilling or genuinely unable to investigate and prosecute international crimes itself.

The Court was set up in 1998 by treaty, the Rome Statute of the ICC. The Statute now has 124 states parties. Non-states parties (those that have not ratified the Rome Statute) include the United States, Israel, Russia, China, and India. 

Whilst specific international tribunals had been set up to deal with the atrocities committed in the Former Yugoslavia, Rwanda, and other crisis situations, there had long been a call for a permanent international criminal court with wider scope than those tribunals.

The ICC considers cases against individuals and as such has to be distinguished from the International Court of Justice (ICJ), which rules on disputes between states, such as the case brought by South Africa against Israel in January 2024 under the 1948 Genocide Convention. 

History of the ICC’s engagement with the situation in Palestine

Following a preliminary examination which began in 2015, in 2021 the former ICC Prosecutor opened a formal investigation into possible crimes in Palestine. The current ICC Prosecutor is Karim Khan KC, a British barrister who was elected by the ICC states parties on 12 February 2021. 

Following receipt of a referral from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti on 17 November 2023, the Prosecutor confirmed that his earlier investigation was ongoing and extends to the escalation of hostilities and violence since the attacks of 7 October 2023. 

The alleged crimes

The arrest warrant against Deif concerns his role as a co-perpetrator and military commander in the murder of hundreds of civilians on 7 October 2023 and the taking of at least 245 hostages. 

The Prosecutor had originally sought arrest warrants for two other Hamas suspects but they have been confirmed dead.

The ICC Pre-Trial Chamber found reasonable grounds to believe that he had committed crimes against humanity of murder, extermination, torture, rape and other forms of sexual violence, as well as the war crimes of murder, cruel treatment, torture, taking hostages, outrages upon personal dignity, and rape and other forms of sexual violence.  

It is not clear whether Deif is still alive or, as the Israeli government claims, has been killed. The Prosecutor had originally sought arrest warrants for two other Hamas suspects but they have been confirmed dead.

As regards Prime Minister Netanyahu and former Defence Minister Gallant, the ICC Pre-Trial Chamber has found reasonable grounds to believe that, by restricting humanitarian assistance in Gaza and depriving the civilian population of essential supplies such as water and medicines, both individuals co-perpetrated, together with others, the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts. 

The Court also found that both Netanyahu and Gallant are responsible as civilian superiors for the war crime of intentionally directing attacks against civilians, given their failure to prevent or repress two incidents of armed attacks.   

Israel is not a party to the Rome Statute but the ICC still has jurisdiction

The ICC has jurisdiction in respect of the crimes alleged in the Prosecutor’s applications because in 2015 Palestine acceded to the Rome Statute as a state party to the ICC. On 22 May 2018, Palestine then self-referred ‘the situation in the State of Palestine’ since 13 June 2014 to the ICC Prosecutor, triggering an investigation into the matter. 

Not all countries in the world recognize that Palestine is a state – the UK, for example, does not – but the majority of countries do. In 2021 the ICC ruled that Palestine is to be considered as a state party to the ICC Statute, for the purposes of this treaty. 

Even though Israel is not a party, the ICC has jurisdiction over Israeli nationals, under Article 12(2)(a) of the Statute, if they commit crimes on the territory of a state party (in this case, Palestine). It is on this basis that the ICC rejected a formal challenge that Israel made to the Court’s jurisdiction.

What happens next?

As envisaged in the Rome Statute, the ICC Pre-Trial Chamber approved the Prosecutor’s request and issued the arrest warrants, as it found reasonable grounds to believe that Deif, Netanyahu and Gallant have committed crimes within the Court’s jurisdiction and their arrest is necessary to ensure their appearance at trial, to avoid obstruction of justice and/or to prevent them from continuing to commit those crimes (Art 58(1)). 

To confirm the charges, the Court must be satisfied that there are substantial grounds to believe that the person committed the crimes in question.

The next stage of the proceedings is the confirmation of charges before trial. During that stage, the ICC Pre-Trial Chamber holds a hearing, normally in the presence of the person(s) charged, to assess whether each charge is supported by sufficient evidence. 

To confirm the charges, the Court must be satisfied that there are substantial grounds to believe that the person committed the crimes in question. It is only once the charges are confirmed that the ICC can proceed to trial.

Will the cases ever come to trial?

The ICC cannot try individuals in absentia so custody of the accused is key for any prosecution to proceed to trial. The ICC relies on states’ cooperation for the enforcement of all its decisions, including the execution of arrest warrants. As with the arrest warrants issued in March 2023 against President Putin and his Commissioner for Children’s Rights, there may be doubts as to whether the named suspects will be arrested and tried, at least in the foreseeable future.  

It also remains contested whether heads and other senior officials of non-states parties, while in office, are entitled to personal immunity before international courts. But the ICC has taken the view that they do not have immunity before the Court and other international courts and tribunals.

If the suspects are apprehended, it usually takes years to conduct trials concerning the gravest crimes to the highest standards of international criminal justice, as foreseen by the Rome Statute. ICC trials are usually complex and costly since they tend to involve multiple perpetrators and a significant number of victims and incidents.   

Gathering and preserving reliable evidence is also challenging, particularly amid active armed conflict situations which may require the consent of states to access territory.

Moreover, criminal justice principles need to be safeguarded, such as those concerning the presumption of innocence, non-retroactivity, double jeopardy, and fair trial rights. 

Legal and political implications

The arrest warrants have both legal and political implications. First and foremost, the 124 states parties to the Rome Statute are legally required to arrest the suspects and transfer them to the Court should they ever come to their countries, in line with their general obligation to cooperate fully with the ICC. 

If those states raise a question of immunity of the persons sought by the Court, or any other obstacle to their transfer to the Court, they may consult with the Court. But failure to comply with the obligation of cooperation can lead to legal proceedings before the ICC. 

Most (but not all) EU member states have confirmed their obligations to cooperate with the Court in executing its warrants, as has the UK.

The Court may decide to refer the offending state to the ICC Assembly of States Parties under the so-called non-compliance procedure. It did so in relation to Mongolia when the country’s government refused to arrest President Putin during his visit of September 2024. 

On the political front, Israel and the US have clearly voiced opposition to the issuing of the arrest warrants against Netanyahu and Gallant. Threats to sanction persons connected with the Court have been made from time to time in relation to the arrest warrants. 

However, most (but not all) EU Member States have confirmed their obligations to cooperate with the Court in executing its warrants, as has the UK (all are parties to the Rome Statute).

Conclusion

These arrest warrants show that the Court will investigate alleged crimes committed in all countries within its jurisdiction including those allied to the West.

Whether or not a trial takes place, and irrespective of reactions from some parts of the world, the ICC will continue to symbolise the resolve of much of the international community to end impunity for international crimes.