An Examination of the ICC’s Arrest Warrant in relation to Atrocities Committed in Gaza

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Owing to the heinous crimes committed by the State of Israel against the State of Palestine, the International Criminal Court (‘ICC’ or ‘Court’) issued arrest warrants in the name of notable officials of the Israeli State to hold them accountable before the Court. Said decision of the Court brings forth a pandora’s box of complex issues concerning the legal basis of the warrant, such as the question as to the jurisdiction of the Court to investigate such matters, and the mandate of Member States to comply with the warrant. In evaluating the aforementioned, this article seeks to explore the mechanisms available for the Court to enforce its decisions—highlighting the concept of ‘cooperation’ that is ever so important in international dimensions.


1 Understanding the Legal Foundation Behind the Arrest Warrant


On Oct 7, 2023, the Palestinian militant group Hamas hurled attacks on the Israeli communities, killing around 1200 people and capturing more than 250 hostages with them; in retaliation, Israel declared war on Hamas and launched a massive military operation in Gaza, which is still ongoing with continuous air strikes, blockades, bombardments, and ground invasion and has resulted in more than 46,000 deaths till today.

Following these attacks on Israel and Palestine, the ICC issued arrest warrants against the Commander-in-chief of Hamas’ military wing Diab Al-Masri (commonly known as Deif), Israeli Prime Minister Benjamin Netanyahu, and former Israeli Minister of Defense Yoav Gallant, over charges of war crimes and crimes against humanity.


The arrest warrants were issued by the Pre-Trial Chamber under Article 58 of the Rome Statute of the ICC. The Pre-Trial Chamber is a 3-judge or a single-judge court formed to initially determine the jurisdiction of the Court over the matter by granting or denying the Prosecutor leave to initiate an investigation. It issues warrants of arrests and summonses to appear before the Court at the request of the Prosecutor. Therefore, these warrants were an approval of the application submitted by the Prosecutor on 20th May 2024 to arrest the individuals.


1.1 Grounds for the Warrant


According to Article 58, after the commencement of an investigation, the Pre-Trial Chamber can issue warrants for arrests on “reasonable grounds to believe” that the suspects have committed the crimes to ensure the individuals’ presence and to prevent the continuation of these crimes. With many hospitals in the Gaza Strip being bombed, ambulances and healthcare workers targeted, children killed, hostages taken by both Israel and Hamas, and blockades on food, water, and medical supplies, there seems to be no shortage of evidence. Bearing into mind these events, the court held both Netanyanhu and Gallant responsible for using starvation as a weapon, referring to Israel’s systemic limitation of food and humanitarian aid supplies in Gaza during the conflict and further accused them of murder, persecution, and inhuman acts on the grounds of Israel’s deliberate attacks on medical facilities in the Gaza Strip. On the other hand, Deif was accused of crimes against humanity and war crimes of mass killing and extermination, including for his role as a mastermind behind the October 7 attacks.


2 The Jurisdictional Dilemma: The ICC’s Role in the Israel-Palestine Context


ICC, as a court of last resort, can only exercise its jurisdiction when the state is unable or unwilling to investigate or prosecute the crime itself. As in the case of Israel and Palestine, it seems both states are unwilling to investigate and prosecute the concerned crimes and individuals involved on the national level after a year has passed, and the attacks are only getting worse. The state of Israel has probed into the corruption charges on Netanyahu; however, it omits to hold him accountable for his gruesome actions against the people of Palestine, which shows their reluctance to prosecute him over these crimes. To talk about the State of Palestine, then there is hardly any proper form of government to address these crimes committed by the person whose whereabouts are unknown. Therefore, it had become incumbent upon the ICC to take action for the sake of international peace and security.

The ICC exercises jurisdiction over crimes of international concern as outlined in the Rome Statute. This jurisdiction is triggered when a situation is referred to the Prosecutor by a State Party, the United Nations Security Council, or through the Prosecutor’s own initiative under Article 15 of the Rome Statute. In the context of the Gaza situation, the ICC Prosecutor received referrals from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti on 17 November 2023, followed by additional referrals from the Republic of Chile and the United Mexican States on 18 January 2024. These referrals established the basis for the ICC’s jurisdiction over the alleged crimes attributed to the suspects.

Furthermore, the ICC may exercise its jurisdiction over individuals who are nationals of the state which has signed and ratified the Rome Statute and thereby accepting the jurisdiction of the ICC to prosecute crimes stated under Article 5 of the Rome Statute. In this respect, Israel challenges the jurisdiction of the ICC because it is not a signatory to the Rome Statute. However, it has no impact on the power of the Court to try Israeli nationals, as according to Article 12(2)(a) of the Statute, the Court also has jurisdiction if the crime in question is committed on the territory of a State Party, in this case, Palestine, which signed the statute in 2015. Therefore, the court is not mistaken under the law to issue warrants for the arrest of Israeli officials involved in the violation of international law.


3 The Sanctity of the ICC’s Decision: Obligations, Oppositions, and Implications


With the issuance of the arrest warrant, an undoubted question imprints itself upon the role of the ICC’s member states in dealing with this instance. Under Article 86 of the Rome Statute, all 124 member states that are party to the Statute are under a general obligation to comply with the warrant. Essentially, this means that this decision is incumbent upon the entirety of the State Parties to cooperate by assisting in the arrest, surrender, or facilitation of individuals named in the warrant as part of their treaty commitments. One such example of assistance pertains to a member state handing over the named individuals in the warrant if found within their territories to the respective authorities.

3.1 Legal Framework that Defines Member States’ Obligations


As mentioned above, Article 89 of the Rome Statute imposes an obligation upon member States to ensure the execution of arrest warrants should the suspects be found within the State’s territory. Such a duty is additionally bolstered by case laws originating from the International Criminal Tribunal for the former Yugoslavia (ICTY), including the Prosecutor v. Blaškić, whereby the Appeals Chamber evaluated the International Tribunal’s authority to issue orders to States, finding that:


“The International Tribunal is empowered to issue binding orders and requests to States, which are obliged to comply with them pursuant to Article 29 of the Statute and that, in case of non-compliance, a Trial Chamber may make a specific judicial finding to this effect and request the President of the International Tribunal to transmit it to the United Nations Security Council …”

Akin to this decision are those reflected in cases like Prosecutor v. Akayesu decided by the International Criminal Tribunal for Rwanda (ICTR). Here, the Court reiterated the duty of all of the States to act in accordance with the Statute of the Court, stating that by its resolution 978 of 27 February 1995, the Security Council “urge[d] the States to arrest and detain, in accordance with their national law and relevant standards of international law… persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the International Tribunal for Rwanda.”

Given the illustrated cases above, the Member States’ responsibility in enforcing the concurrent arrest warrants issued by the ICC becomes a duty imperative to execute. Where Blaškić showcases the binding nature of the orders of the Court upon its States, making it compulsory for them to follow through said orders, cases like Akayesu are representative of the obligations imposed on the Member States in the instance of the order for the arrest. Henceforth, it is safe to assume that all of the Member States are duty-bound to enforce the arrest warrant should the named accused be found in their territories—solidifying that the Member States’ obligations are not merely aspirational but are legal norms that must be enforced.


3.2 Non-Party Status of Israel and Its Implications


However, the same is not true for the State of Israel, a non-member state. Israel’s non-party status has exempted it, ages ago, from adhering to any legal obligations that the ICC might impose upon it: a morbid fact that reflects how limited of an impact the decision of the ICC has over states that failed to ratify the statute, for it births a gaping hole in international justice each time non-member states are involved. Despite this, non-compliance might become complicated, owing to potentially strained diplomatic relations and international pressure exerted—an evident precedent being the global backlash faced by South Africa for its failure to rightfully arrest the Sudanese President, Omar Al-Bashir, in 2015. Such backlash is not always restrained to verbal condemnations: Israel might be subjected to economic sanctions, restricted mobility, and diplomatic blocks.


3.3 Potential for Voluntary Cooperation


In this regard, it becomes integral to evaluate what measures Israel might adopt in navigating these issues, given that the ICC may also request cooperation under Article 87 of the Rome Statute. This Article serves as a binding obligation upon member states, though it is a voluntary compliance on the part of non-members like Israel. This adherence, again, seems unlikely to be followed through on the end of Israel, provided that the State holds a longstanding vehement and consistent opposition with regard to the jurisdiction of the ICC to investigate matters pertaining to the Palestinian territories. The strongest of these rejections surfaced in 2021 (a reaffirmation of its stance from 2009), post ICC’s declaration to inquire into the occupied Palestinian territories, including Gaza, the West Bank, and East Jerusalem, for alleged war crimes.


4 Key Takeaways


On a final note, it is rather apparent that the ICC performs a pivotal role in the international pursuit of justice, holding war criminals accountable for their heinous crimes, including war crimes, crimes against humanity, and genocide, that otherwise seek to disrupt peace and security.


In the dialogue above, it has been made utterly transparent that while the issuance of the arrest warrant is a significant and crucial step by the ICC, the Court is subjected to multiple obstacles in terms of its authority to have its decisions enforced and complied. For example, the persistent questions raised by the non-member State, Israel, as to the jurisdiction of the Court to investigate atrocities in Gaza, coupled with its blunt reluctance to abide by the Court’s decision, showcases its express disregard for the Court’s orders. These issues bubble to the surface certain challenges to the Court’s authority, ultimately blurring over its legitimacy in international dimensions. It is, thus, suggested for the ICC to reinforce its mechanisms that can deal more effectively with non-compliant and non-party States to ensure greater adherence rates. This could be executed via a strengthened political unity amongst Member States that could exert extensive influence for the ICC’s orders to be wholly complied with.

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Authors:


Syeda Javeria Ali
Research Associate, RCIL & HR
sy***************@gm***.com

Urooj Shafi
Research Associate, RCIL & HR
ur*********@gm***.com

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