On 21 November, the International Criminal Court (ICC) issued three arrest warrants as part of its investigation into the situation in Palestine, which has been ongoing since 2021. The warrants target two high-ranking Israeli officials, Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant (who served from December 2022 to November 2024), as well as Mohammed Diab Ibrahim Al-Masri, known as Mohammed Deif, the leader of Hamas’s military wing. The first two are charged with crimes against humanity and war crimes committed between 8 October 2023 and at least 20 May 2024, the date on which the Prosecutor submitted the arrest warrant requests. The third is charged with crimes against humanity and war crimes committed on the territories of Israel and Palestine since at least 7 October 2023. While the charges are serious, the path to possible trials before the ICC remains complex and fraught with obstacles.
By Catherine MAIA et Charlotte ROLLET
Context of the Issuance of Arrest Warrants
These arrest warrants are part of an investigation initiated by the ICC Prosecutor into the situation in the State of Palestine, whose premises began almost a decade ago. On 1 January 2015, Palestine submitted a declaration in accordance with Article 12(3) of the Rome Statute, recognising the jurisdiction of the ICC to investigate alleged crimes committed “in the Occupied Palestinian Territory, including East Jerusalem, since June 13, 2014”. The following day, Palestine formalized its accession to the Rome Statute by depositing the corresponding instrument with the United Nations Secretary-General, an accession that became effective on 1 April 2015.
In the same month, on 16 January 2015, the Prosecutor announced the launch of a preliminary examination of the situation in Palestine, with a view to assessing whether the conditions set out in the Rome Statute for the opening of an investigation had been met, especially in terms of jurisdiction, admissibility and the interests of justice.
Subsequently, on 22 May 2018, according to Articles 13(a) and 14 of the Rome Statute, Palestine formally referred its situation to the Prosecutor, concerning events occurring from 13 June 2014 onwards, without temporal limitation. The Prosecutor responded favourably to this referral on 3 March 2021, stating that, following a thorough assessment, he considered that all the criteria established by the Rome Statute for the opening of an investigation had been met, with the Court’s territorial jurisdiction extending to Gaza and the West Bank, including East Jerusalem, in accordance with the decision of Pre-Trial Chamber I of 5 February 2021. This initial referral was further bolstered by additional referrals submitted in 2023 by South Africa, Bangladesh, Bolivia, the Comoros and Djibouti, and later in 2024 by Chile and Mexico.
On 20 May 2024, the ICC Prosecutor submitted requests to Pre-Trial Chamber I for the issuance of arrest warrants related to the situation in the State of Palestine. While it usually takes between three and six weeks to rule on such requests, it took six months for the ICC’s Pre-Trial Chamber I to decide unanimously on 21 November to issue three arrest warrants. This record delay since the creation of the ICC in 1998 can be explained not only by the fact that it has been, and continues to be, subject to unprecedented pressure and sanctions orchestrated by Israel and some of its allies, most notably the United States, which is not a member of the Court, but also to attempts to challenge the ICC’s jurisdiction over Israeli nationals. On this point, the Court dismissed the argument, advanced by some States (notably Germany and the United Kingdom), that the 1993 Oslo Accords did not grant criminal jurisdiction to Palestine, thus precluding its ability to refer cases to the ICC, as well as the argument put forward by Israel that the Court could not have jurisdiction over a third State, as it does have territorial jurisdiction over Palestine, which is a Member State.
More specifically, Mr. Benjamin Netanyahu and Mr. Yoav Gallant, respectively Prime Minister of Israel and Minister of Defence of Israel at the time of the alleged acts, are charged with crimes against humanity and war crimes allegedly committed from at least 8 October 2023 to at least 20 May 2024. They are charged as co-perpetrators, which means that they are personally and directly liable, but also as civilian superiors. Mr. Netanyahu and Mr. Gallant are suspected of the war crimes of deliberately starving civilians as a method of warfare and intentionally directing an attack against the civilian population. They are alleged to have deliberately deprived the civilian population of Gaza of food, water, medicine, fuel and electricity by obstructing or restricting access to humanitarian aid, all restrictions that had no military justification, even though minimal humanitarian aid had been authorized. Additionally, they are also suspected of crimes against humanity of murder, persecution and other inhumane acts, as the war operations carried out by the Israeli army in the Gaza Strip resulted in a widespread and systematic attack against its civilian population.
For his part, Mr. Mohammed Deif is accused of the 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, hostage-taking, outrages upon personal dignity, rape and other forms of sexual violence, committed on the territory of the State of Israel and the State of Palestine from at least 7 October 2023. Although the Israeli military announced his death in a targeted bombing in July 2024, the issuance of this arrest warrant ensures that accountability efforts are not solely directed at Israeli leaders. In line with its policy of impartiality in addressing crimes committed by all parties – and despite criticism for equating leaders of a terrorist organisation with elected leaders of a democracy – the ICC Prosecutor had initially also requested arrest warrants for Mr. Ismail Haniyeh, head of Hamas’s political bureau, and Mr. Yahya Sinwar, Hamas’s leader in the Gaza Strip. In the meantime, both were killed by the Israeli army, the first in July in Iran, the second in October in the southern Gaza Strip.
Consequences of the Issuance of Arrest Warrants
Even if the ICC considers that the proof of Mohammed Deïf’s death has not been provided with certainty, he was likely killed in a targeted Israeli strike in July 2024. As such, the arrest warrants will certainly only have consequences for Benjamin Netanyahu and Yoav Gallant.
From a legal perspective, the ICC arrest warrants will have no effect in States that are not parties to the Rome Statute, including Israel, where they could be used politically by the accused and their supporters to fuel hostility towards the Court. This is also true for the United States, which, under the presidency of Donald Trump beginning in January 2025, may adopt retaliatory measures against the ICC. Consequently, Mr Netanyahu and Mr Gallant can travel freely to non-State parties to the Rome Statute, such as China, India, or Russia, which are not obliged to cooperate with the Court. A contrario, the arrest warrants will have effect in the 124 States parties to the Rome Statute (125 with Ukraine from January 2025). These countries are required to cooperate with the ICC and execute the warrants, potentially leading to restrictions on international travel for the accused. Furthermore, the issuance of these warrants could intensify efforts to gather evidence and mobilise international cooperation for potential prosecutions, which require the presence of the accused before the Court.
From a diplomatic perspective, alongside the July 2024 advisory opinion of the International Court of Justice (ICJ), which highlighted systemic violations of international human rights law, these accusations could increase Israel’s isolation, particularly in international forums, as some States may avoid dealing directly with the individuals targeted, or even suspend or cease arms sales. In this regard, Germany, the second largest supplier of arms to Israel, currently has to respond to an application filed by Nicaragua against it before the ICJ for alleged breaches of certain international obligations concerning the Occupied Palestinian Territory. Furthermore, the arrest warrants could heighten tensions between the Court and certain State parties to the Rome Statute that, while obliged to cooperate, do not rigorously fulfill their international obligations. The most recent example is the official visit of Russian President Vladimir Putin to Mongolia, an ICC member State, in September, despite an ICC arrest warrant against him, a failure to act that has been referred to the Assembly of States Parties for possible sanctions. Individuals under warrant arrest can thus continue to travel to countries offering guarantees that they will not be arrested.
From a symbolic perspective, with Mr. Netanyahu and Mr. Gallant now accused of the gravest crimes, these arrest warrants send a strong message about the importance of criminal responsibility for international crimes and are a sign of recognition for the victims of violence related to the current conflict in Gaza. In this regard, they bring a glimmer of hope for justice to countless victims of international crimes and help restore confidence in a credible and legitimate system of international justice. As the first arrest warrants against leaders of a country in the Western camp, these can also be seen, after the one issued against the Russian head of State, as an act affirming the independence and determination of the ICC to deal with even the most politically sensitive situations.
In practice, however, the effectiveness of the arrest warrants will largely depend on the cooperation of States and the means available for their enforcement. Despite confirmations from several States, particularly in Europe, of their intention to implement these warrants, the likelihood of them leading to arrests and trials remains low without the genuine political will to apply international law and, more broadly, to bring an end to the armed conflict in the Middle East.
Catherine MAIA, Professor at Lusófona University – University Center of Porto (Portugal), visiting professor at Sciences Po Paris (France)
Charlotte ROLLET, Master’s graduate of the Lyon Institute of Human Rights, Catholic University of Lyon (France)