By Victor Peskin
On November 21, 2024, Israeli Prime Minister Benjamin Netanyahu, his former defense minister, and a prominent Hamas figure received an arrest order from the International Criminal Court. In connection with the October 7, 2023, attack by the Palestinian militant group and the Israel Defense Forces’ ensuing siege and bombing of Gaza, those mentioned in the lawsuit are charged with war crimes and crimes against humanity.
Three senior Hamas officials were the targets of arrest warrants requested by ICC Chief Prosecutor Karim Khan in May 2024 on charges of rape and other sexual abuse, murder, extermination, and hostage-taking. Israeli soldiers have since killed Ismail Haniyeh and Yahya Sinwar, two of those Hamas commanders. According to reports, Israeli forces also assassinated Mohammed Deif, a third leader, in August. Despite this, the ICC Pre-Trial Chamber issued an arrest warrant for Deif, stating that there was no proof of his death.
Netanyahu and former defense minister Yoav Gallant are accused of causing the starvation of Palestinians in Gaza, planning strikes against civilians, persecuting them, and killing them willfully.
Genocide, crimes against humanity, and war crimes—the latter of which includes targeting people and committing other wartime offenses including obstructing humanitarian aid—are all prosecuted by the International Criminal Court (ICC), an impartial court with its headquarters in The Hague, Netherlands.
The arrest warrants, which were rejected with disgust by the Israeli government in a statement, could mean that anyone who travels to one of the 124 member states of the ICC could be arrested. Although the State of Palestine has been a party to the Rome Statute, which established the court, since 2015, Israel is not a member state of the court.
As a scholar of international courts and human rights, I believe it is critical to stress that arrest warrants do not guarantee that the accused will be taken into custody or put on trial.
Like other modern international criminal tribunals, the ICC has no enforcement authority of its own. This implies that the ICC might never be able to detain suspects or try them in the Israel-Hamas conflict.
As a result, the record of these international courts holding powerful military and political figures responsible for their crimes is not entirely consistent. Political leaders will only be arrested and turned over to international courts for prosecution if and when they are overthrown by their nations.
The difficulty facing international courts
Consider Russian President Vladimir Putin, who has been evading an ICC arrest order for alleged war crimes during the conflict in Ukraine since March 2023. The likelihood of Putin being arrested is almost zero as long as he is in power.
The ICC and other international criminal tribunals face two challenges. First of all, there is no real international police force at these tribunals to make arrests.
Second, states involved in the alleged crimes of their leaders frequently attempt to thwart international tribunals by refusing to turn over suspects and by accusing the tribunals of being biased.
As my research has demonstrated, the enforcement issue can enable the leaders of a strong nation like Israel or an organization like Hamas to avoid arrest warrants issued by international tribunals, provided that the accused stay on their soil.
Israel has never consented to follow court decisions or arrest warrants and does not otherwise acknowledge the ICC’s jurisdiction because it is not a member state. The United States and other nations, such as Qatar, which has housed several high-ranking Hamas members in recent years, are not ICC members and are not required by law to conduct arrests.
Because of this, Netanyahu and Gallant could still visit Washington, D.C., to meet with U.S. leaders without worrying about being arrested. However, they will probably refrain from visiting EU nations, which are all members of the ICC and would be required to detain Netanyahu.
All of this could also help Israel become even more isolated and under pressure from other countries for its actions during the war.
International stigmatization of Hamas is another risk associated with issuing arrest warrants for the organization’s leaders.
The United States, which has occasionally voiced strong opposition to the ICC but has also provided ad hoc backing for the court, as was the case with the ICC in Ukraine, has previously cautioned that issuing arrest warrants for Israeli leaders may jeopardize a possible cease-fire deal between Israel and Hamas.
The downfall of Milosevic
Arrest warrants don’t always fail.
Slobodan Milosevic’s prosecution in the middle of the 2000s serves as an example of how alleged war criminals may be brought to justice by international tribunals after they are overthrown.
The International Criminal Tribunal for the former Yugoslavia was established by the UN Security Council in 1993 to try cases involving crimes committed during the regional conflicts while the Bosnian War was still raging.
Slobodan Milosevic, a Serbian nationalist leader, was charged by this court in 1999 with war crimes and crimes against humanity related to the ongoing conflict in Kosovo. The main ethnic group in Kosovo, Kosovar Albanians, were the target of a huge ethnic cleansing campaign that was one of Milosevic’s claimed crimes. Later, Milosevic was charged with more crimes in Bosnia and Croatia.
However, Milosevic’s administration protected him from arrest and he was still in power when the indictment was issued. Following massive protests, Milosevic resigned after losing a presidential election in late September 2000.
To hasten Serbia’s postwar rehabilitation, the United States pledged significant economic support to the country’s newly established democratic government. This contributed to Milosevic’s arrest by the Serbian government and subsequent transfer to the international tribunal in June 2001.
On April 27, 2024, supporters and relatives of captives detained by Palestinian terrorists in Gaza chant during a protest demanding their release.AFP via Getty Images/Jack Guez
A possible guide for Israeli officials
Milosevic’s trial began in February 2002, but he passed away in prison in 2006, just before it was over.
His trial continues to demonstrate that, in certain situations, international tribunals may get past their lack of enforcement authority and try high-level offenders. International political incentives and pressure are frequently crucial to this process.
It’s unlikely that any political pressure or assurances will convince Israel, Qatar, or other nations to cooperate with an international court and turn over any officials who are prosecuted as long as any military and political leaders who could be arrested are still in office.
Furthermore, history demonstrates that there is no assurance that possible suspects would ever face trial before the ICC, even in the event that Israeli authorities lose elections or Hamas leaders are ousted.
In Israel, the ICC is widely opposed by the populace.
Israeli lawmakers have expressed their fury over the court’s sarrest orders, even though Khas, the ICC’s chief prosecutor, has previously attempted to bring charges against Hamas leaders for the October 7 atrocities.
Furthermore, it is extremely unlikely that the United States, which declared that it firmly opposes the ICC’s actions against Netanyahu and Gallant, will exert the same kind of pressure on Israel—a close ally—that it was able to exert on Serbia to arrest Milosevic following his overthrow.
This article was revised from one that was first published on June 22, 2022.
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