By Ambra Visentin

The Chief Prosecutor of the International Criminal Court has asked the court’s Pre-Trial Chamber to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his Defence Minister Yoav Gallant for “war crimes and crimes against humanity” in Gaza from 8 October 2023. We analysed the implications and possible consequences with legal scholar Pierpaolo Petrelli, Professor of International Law and Transnational Terrorism at O.P. Jindal Global University (India).

Pierpaolo Petrelli, Professor of International Law and Transnational Terrorism at O.P. Jindal Global University (India)

What does the request for arrest warrants for the leaders of Israel and Hamas mean specifically?
“The request for arrest warrants is a crucial step in the prosecution of those responsible for serious international crimes. This action consists of a number of important steps aimed at ensuring that the crimes that have been committed do not go unpunished and that those responsible are brought to justice.”

What are the Israeli leaders accused of?
“Benjamin Netanyahu and Yoav Gallant are accused of implementing a strategy of siege and deprivation of basic civilian necessities such as food, water and medicine, causing severe suffering and death to the Palestinian population of the Gaza Strip. The evidence presented includes survivor testimony, satellite imagery documenting the destruction of civilian infrastructure, authenticated video and photographic material, and expert testimony highlighting the devastating impact of these actions.”

And the Hamas leaders?
“Hamas leaders such as Yahya Sinwar, Mohammed Deif and Ismail Haniyeh are charged with war crimes and crimes against humanity, including murder, ill-treatment and hostage-taking. Thery are accused of orchestrating coordinated and systematic attacks against Israeli civilians, causing hundreds of deaths and severe suffering. The evidence against them includes eyewitness testimony, NGO reports, digital forensic analysis, and public statements by Hamas leaders proving their direct responsibility for the attacks.”

What are the next steps?
“The Pre-Trial Chamber examines the Prosecutor’s request and the evidence presented. It considers whether there are reasonable grounds to believe that the suspect has committed the crimes charged. Once the arrest warrant is issued, the ICC relies on the cooperation of States Parties to carry out the arrest. It may also request the assistance of international organisations, such as Interpol, to monitor the suspect’s movements and facilitate the arrest.”

How long will the decision take?
“Given the importance of these allegations and the international pressure for a speedy resolution, it is possible that the Pre-Trial Chamber will expedite the review and deliberation process. For example, the decision to issue an arrest warrant for Russian President Vladimir Putin was taken in a relatively short period of time. It took around seven months from the start of the evidence gathering process to the issuing of the warrant.
Based on this comparison, and considering that the evidence gathering in the Israeli-Palestinian conflict has already been completed and a formal request has been submitted, it is reasonable to expect that the Pre-Trial Chamber could issue a decision within 2-3 months.”

If Israel does not recognise the ICC, does the legal system still apply?
“The ICC can exercise its jurisdiction over crimes committed on the territory of a State Party or by nationals of a State Party. Although Israel is not a party, Palestine became one in 2015. This gives the ICC jurisdiction over crimes committed in the Occupied Palestinian Territory, including Gaza and the West Bank.
There are precedents where the ICC has exercised jurisdiction over individuals from non-States Parties on the basis of territorial and personal jurisdiction. The case of Georgia, where the ICC investigated crimes committed by Russian citizens, shows how the Court can act even when the state is not a member. This strengthens the argument that the territorial jurisdiction conferred by Palestine is sufficient to prosecute Israeli individuals for crimes committed in the Occupied Palestinian Territory.”

We said that ICC relies on the cooperation of States Parties to carry out arrests. Has that cooperation ever failed?
“In 2009 and 2010, for example, the ICC issued arrest warrants for Omar al-Bashir, the former president of Sudan, for war crimes, crimes against humanity and genocide. al-Bashir managed to travel to several countries without being arrested. Some States Parties, such as South Africa, did not execute arrest warrants during his visits, leading to legal and diplomatic disputes.
There are other examples of difficulties in executing arrest warrants. For example, Libyan leader Muammar Gaddafi and Kenyan President Uhuru Kenyatta both faced ICC arrest warrants. However, in many cases, lack of international cooperation and political considerations have hindered the arrest and surrender of suspects.”

What international commitment to arrest Israeli leaders can we expect?
“Germany and Norway have expressed their commitment to complying with ICC orders, stressing the need to uphold international law. On the other hand, we have seen that the Biden administration has privately told the ICC that it would be a mistake to issue arrest warrants for Israeli leaders and has indicated that it does not support this action.
It is also interesting to note the position of France and the UK as States Parties. The French government has not made any specific statements, preferring to maintain a diplomatic stance and respect for international legal procedures. The UK expressed concern about the arrest warrants, noting that such actions may not contribute to a sustainable ceasefire in Gaza. The UK government has stated that it does not accept the jurisdiction of the ICC in this case as it does not recognise Palestine as a state.”

Do arrest warrants risk escalating the conflict?
“Some argue that the arrest of senior leaders could trigger a chain reaction of violence and instability, undermining peace efforts and increasing civilian suffering. However, lasting peace is also threatened by continued impunity. Without accountability for serious crimes, the scars of conflict will continue to fuel tensions.
Peace processes that ignore justice for victims cannot be truly sustainable. The international community must balance diplomatic efforts with support for international justice to build a just and lasting peace.”

Cover image by Sabira Dewji on Shutterstock