ICC arrest warrants for Israel’s Netanyahu and Hamas leader do not mean the defendants will face trial anytime soon | The conversation

By Victor Peskin

The International Criminal Court arrest warrants issued on November 21, 2024, for Israeli Prime Minister Benjamin Netanyahu, his former Defense Minister and a prominent Hamas official. Those named in the action are accused of war crimes and crimes against humanity related to the October 7, 2023 attack by the Palestinian militant group and the subsequent ongoing siege and bombing of Gaza by the Israel Defense Forces.

In May 2024, Karim Khan, ICC chief prosecutor He sought arrest warrants for three senior Hamas leaders, accusing them of extermination, murder, hostage-taking, and rape and other acts of sexual violence. Two of those Hamas leaders, Yahya Sinwar and Ismail Haniyeh, have since been killed by Israeli forces. A third leader, Mohammed Deif, was also reported to have been killed by Israeli forces in August. But the ICC Pre-Trial Chamber still issued an arrest warrant for Deif, explaining that his death has not been confirmed.

The accusations against Netanyahu and former Defense Minister Yoav Gallant include starving Palestinians in Gaza, “intentionally directing attacks against a civilian population,” as well as persecution and “intentional murder.”

The ICC, an independent court based in The Hague, Netherlands, prosecutes genocide, crimes against humanity, and war crimes; the latter is a legal term that includes attacking civilians and committing other crimes. wartime rapeas blocking humanitarian aid.

The arrest warrants, which the Israeli government in a statement rejected “with disgust” mean, in theory, that defendants could face arrest if they travel to one of the ICC’s 124 member states. Israel is not a member state of the court, but the “State of Palestine” has been part of the Rome Statutethat created the court, since 2015.

like a human rights scholar and international courts, I think it is important to emphasize that arrest warrants do not mean that defendants will necessarily face arrest or trial.

The ICC, like other contemporary international criminal courts, lacks law enforcement powers of its own. That means that in the situation between Israel and Hamas, the ICC may never be able to arrest suspects or bring them to trial.

Therefore, these international tribunals have a mixed record of holding senior political and military leaders accountable for their crimes. Only when political leaders fall from power will there be any chance of their governments arresting them and handing them over to international tribunals for prosecution.

The challenge for international courts

Take the example of Russian President Vladimir Putin, who, since March 2023, has defied an ICC arrest warrant for allegedly committing war crimes during the Ukrainian war. As long as Putin remains in power, there are practically no prospects for his arrest.

International criminal courts like the ICC have a double problem. Firstly, these courts do not have a real international police force to carry out arrests.

Second, governments implicated in their leaders’ alleged crimes often attempt to obstruct international tribunals by not handing over suspects and attempting to attack the tribunals as biased.

The application problem, as my scholarship has demonstratedcan allow the leaders of a powerful country like Israel or an entity like Hamas to evade arrest warrants from international courts, as long as the suspects remain within their country or territory.

Because Israel is is not a member state of the ICChas never agreed to abide by court rulings or arrest warrants and does not otherwise accept the court’s jurisdiction. The United States and other countries, including Qatar, which has hosted several senior Hamas members in recent years, are also not members of the ICC and do not face a legal obligation to make arrests.

As such, Netanyahu and Gallant could still travel to meet with American leaders in Washington, D.C., without fear of arrest. But now they will likely avoid traveling to European Union countries, all of which are part of the ICC and would be required to arrest Netanyahu.

All of this can also contribute to Israel greater international isolation and pressure on their conduct in times of war.

Issuing arrest warrants against Hamas leaders also threatens to stigmatize Hamas internationally.

The United States, which has at times strongly opposed the ICC but has also supported the court on an ad hoc basis, as has occurred in the ICC situation in Ukraine, has previously warned that issuing arrest warrants against Israeli leaders could jeopardize a possible ceasefire agreement between Israel and Hamas.

Milosevic’s fall from power

Not all arrest warrants fail.

the judgment of Serbian leader Slobodan Milosevic in the mid-2000s illustrates how international courts could prosecute suspected war criminals once they fall from power.

In 1993, while the war was still being fought in Bosnia, the United Nations Security Council created a special court, called the Tribunal International Criminal Tribunal for the former Yugoslaviato address crimes committed during regional wars.

This court charged Serbian nationalist leader Slobodan Milosevic with war crimes and crimes against humanity in 1999 during the ongoing Kosovo war. Milosevic’s alleged crimes in Kosovo included a massive campaign of ethnic cleansing waged against Kosovo Albanians, the largest ethnic group there. Milosevic later faced additional charges for alleged crimes in Bosnia and Croatia.

But Milosevic was still in power when the indictment was issued and his government protected him from arrest. Milosevic lost the presidential election at the end of September 2000 and, after widespread protests, low.

The United States promised Serbia’s new democratic government substantial economic assistance to accelerate its postwar recovery. This helped push the Serbian government to arrest Milosevic and then transfer it to international court in June 2001.

Relatives and supporters of hostages held by Palestinian militants in Gaza sing during a demonstration calling for their release on April 27, 2024. Jack Guez/AFP via Getty Images

A potential manual for Israeli leaders

The Milosevic trial was released in February 2002but he died in prison in 2006, shortly before the end of his trial.

His trial still demonstrates that, in specific circumstances, international courts can overcome their lack of enforcement powers and bring high-level suspects to trial. International political pressure and incentives often play an essential role in this process.

As long as political and military leaders facing possible arrest remain in power, no political pressure or promises are likely to persuade Israel, Qatar or other countries to cooperate with an international tribunal and hand over the leaders, if they are charged. .

And history also shows that even if Hamas leaders are overthrown or Israeli leaders lose elections, there is no guarantee that potential suspects will ever be tried at the ICC.

There is widespread public opposition to the ICC in Israel.

Although Khas, the ICC’s chief prosecutor, has also sought to prosecute Hamas leaders for the October 7 atrocities, Israeli politicians have reacted to the court’s decision. arrest warrants with indignation.

Furthermore, at least in the short term, it is highly unlikely that the United States, which announced that ““fundamentally rejects” the actions of the ICC against Netanyahu and Gallant, he will apply against his close ally, Israel, the kind of pressure that he successfully applied on Serbia after the arrest of Milosevic after his fall from power.

This story was updated from a originally published article on June 22, 2022.