ICC arrest warrants for Israel’s Netanyahu and Hamas chief doesn’t imply these accused will face trial anytime quickly

The Worldwide Legal Court docket issued arrest warrants on Nov. 21, 2024, for Israeli Prime Minister Benjamin Netanyahu, his former protection minister and one main Hamas official. These named within the motion are accused of conflict crimes and crimes towards humanity regarding the Oct. 7, 2023, assault by the Palestinian militant group and the next ongoing siege and bombing of Gaza by the Israel Protection Forces.

In Could 2024, ICC Chief Prosecutor Karim Khan sought arrest warrants for 3 senior Hamas leaders, accusing them of extermination, homicide, taking hostages and committing rape and different acts of sexual violence. Two of these Hamas leaders, Yahya Sinwar and Ismail Haniyeh, have since been killed by Israeli forces. It has been reported {that a} third chief, Mohammed Deif, had additionally been killed by Israeli forces in August. However the ICC Pre-Trial Chamber nonetheless issued an arrest warrant for Deif, explaining that his dying has not been confirmed.

Allegations towards Netanyahu and former protection minister Yoav Gallant embody ravenous Palestinians in Gaza, “deliberately directing assaults towards a civilian inhabitants,” in addition to persecution and “willful killing.”

The ICC, an unbiased tribunal based mostly in The Hague, Netherlands, prosecutes genocide, crimes towards humanity and conflict crimes – the latter being a authorized time period that features attacking civilians and committing different wartime violations, reminiscent of blocking humanitarian assist.

The arrest warrants, which the Israeli authorities in a press release rejected “with disgust,” imply, in concept, that these accused may face arrest ought to they journey to one of many ICC’s 124 member states. Israel is just not a member state of the court docket, however the “State of Palestine” has been a celebration to the Rome Statute, which arrange the court docket, since 2015.

As a scholar of human rights and worldwide courts, I believe it is very important emphasize that the arrest warrants don’t imply that these accused will essentially face arrest or trial.

The ICC, in keeping with different modern worldwide prison tribunals, lack any enforcement powers of their very own. Which means within the Israel-Hamas state of affairs, the ICC could by no means have the ability to arrest suspects or deliver them to trial.

These worldwide courts due to this fact have a combined report of holding senior political and navy leaders accountable for his or her crimes. It’s provided that and when political leaders fall from energy that there’s any probability that their governments will arrest and hand them over to worldwide courts for prosecution.

The problem for worldwide courts

Take the instance of Russian President Vladimir Putin, who, since March 2023, has defied an ICC arrest warrant for allegedly committing conflict crimes through the Ukraine conflict. So long as Putin stays in energy, there may be virtually no prospect of his arrest.

Worldwide prison tribunals such because the ICC have a twofold downside. First, these tribunals shouldn’t have an precise worldwide police pressure to hold out arrests.

Second, governments implicated of their leaders’ alleged crimes typically attempt to impede worldwide tribunals by not turning over suspects and by in search of to assault the tribunals as biased.

The enforcement downside, as my scholarship has proven, can enable the leaders of a strong nation reminiscent of Israel or an entity like Hamas to evade arrest warrants from worldwide courts – so long as the suspects stay inside their nation or territory.

As a result of Israel is not an ICC member state, it by no means agreed to abide by court docket rulings or arrest warrants and doesn’t in any other case settle for the court docket’s jurisdiction. The U.S. and different nations, together with Qatar, which lately has hosted quite a lot of senior Hamas members, are additionally not ICC members and don’t face a authorized obligation to make arrests.

As such, Netanyahu and Gallant may nonetheless journey to fulfill with U.S. leaders in Washington, D.C., with out worry of arrest. However they may now probably keep away from journey to European Union nations, all of that are a part of the ICC and can be obliged to arrest Netanyahu.

All of this may increasingly additionally contribute to Israel’s additional worldwide isolation and strain over its wartime conduct.

Issuing arrest warrants for the Hamas leaders additionally threatens to stigmatize Hamas internationally.

The U.S., which at occasions has strongly opposed the ICC however has additionally supported the court docket on an advert hoc foundation, as has occurred within the ICC’s Ukraine state of affairs, has beforehand warned that issuing arrest warrants for Israeli leaders may compromise a possible cease-fire settlement between Israel and Hamas.

Milosevic’s fall from energy

Not all arrest warrants fail.

The trial of Serbian chief Slobodan Milosevic within the mid-2000s illustrates how worldwide tribunals may have the ability to prosecute alleged conflict criminals as soon as they fall from energy.

In 1993, because the conflict in Bosnia was nonetheless being fought, the United Nations Safety Council arrange a particular court docket, known as the Worldwide Legal Tribunal for the previous Yugoslavia, to handle crimes dedicated through the regional wars.

This court docket indicted Serbian nationalist chief Slobodan Milosevic for conflict crimes and crimes towards humanity in 1999 through the ongoing Kosovo conflict. Milosevic’s alleged crimes in Kosovo included a large ethnic-cleansing marketing campaign waged towards Kosovar Albanians, the biggest ethnic group there. Milosevic later confronted further costs for alleged crimes in Bosnia and Croatia.

However Milosevic was nonetheless in energy when the indictment was issued, and his authorities shielded him from arrest. Milosevic misplaced a presidential election in late September 2000 and, after widespread protests, stepped down.

The U.S. promised the brand new democratic authorities in place in Serbia substantial financial help to hurry its postwar restoration. This helped immediate the Serbian authorities to arrest Milosevic after which switch him to the the worldwide tribunal in June 2001.

A possible playbook for Israeli leaders

Milosevic’s trial was launched in February 2002, however he died in jail in 2006, shortly earlier than the top of his trial.

His trial nonetheless reveals that below particular circumstances, worldwide courts can overcome their lack of enforcement powers and convey high-level suspects to trial. Worldwide political strain and incentives typically serve a necessary position on this course of.

So long as any political and navy leaders dealing with potential arrest stay in energy, it’s probably that no quantity of political strain or guarantees will persuade Israel, Qatar or different nations to cooperate with a global court docket and switch over any leaders, if they’re indicted.

And historical past additionally reveals that even when Hamas leaders are overthrown or Israeli leaders lose elections, there’s no assure that potential suspects will ever stand trial on the ICC.

There’s broad public opposition to the ICC in Israel.

Even though Khas, the ICC’s chief prosecutor, has additionally sought to prosecute Hamas leaders for the atrocities of Oct. 7, Israeli politicians have reacted to the court docket’s arrest warrants with outrage.

Furthermore, at the least within the brief time period, it’s extremely unlikely that the U.S., which introduced that it “basically rejects” the ICC’s actions towards Netanyahu and Gallant, will apply the kind of strain towards its shut ally, Israel, that it efficiently utilized on Serbia for Milosevic’s arrest after his fall from energy.

This story was up to date from an article initially revealed on June 22, 2022.