ICC judges to decide on arrest warrants for Israeli and Hamas leaders: a legal breakdown

The prosecutor of the International Criminal Court (ICC), Karim Khan, has been a prominent figure in the news in recent years. In 2023, he requested – and was granted – a warrant for the arrest of Russia’s president, Vladimir Putin.

He then dived into the Israeli-Palestinian conflict in May 2024, requesting arrest warrants for the leaders of Hamas and Israel in response to the ongoing violence in the Middle East. The ICC is expected to make a decision on whether to accept Khan’s request in the coming days.

The prosecutor is responsible for initiating investigations when there are reasonable grounds to believe that one of the four international crimes within the ICC’s jurisdiction has been committed. These crimes are war crimes, crimes against humanity, genocide, and the crime of aggression.

The prosecutor may initiate an investigation if it is requested by either the UN Security Council or one of the ICC’s 124 member states. But they can also open an investigation on their own initiative, as has happened in the Israel-Hamas case and on several occasions before.

Khan’s predecessor, Fatou Bensouda, opened an investigation against Israel in 2021. And the current events were, somewhat controversially, addressed as part of this case. The US and others have argued that, given the events of October 7, Khan should have opened a new investigation, and that the failure to do so raises concerns about due process.

When determining whether to proceed with an investigation, the prosecutor must consider various factors. These include the ability and willingness of the relevant state to conduct its own investigation into the alleged crimes.

If the prosecutor is satisfied that the state is genuinely investigating the suspected crimes, then they will defer to the state and refrain from further action. This act of deference is known in international law as the principle of complementarity.

It is this element – the state’s ability and willingness to investigate alleged crimes on its own – that has drawn the ire of certain politicians regarding Khan’s decision to request arrest warrants.

The US Secretary of State, Antony Blinken, commented in a press statement that the prosecutor “rush[ed] to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed”.

Germany, which intervened in the case in support of Israel, made a similar remark. It stated that, as Israel is currently at war, it should have been “given an appropriate and genuine opportunity to put its accountability mechanisms into action”.

Whether the court accepts that the prosecutor acted too hastily will be clarified in its imminent decision.

Another unique element in the process leading to the request for arrest warrants was the prosecutor’s appointment of an independent panel of legal advisers. The task of this panel was to assist Khan with “evidence review and legal analysis”.

The panel’s appointment and its work, however, has attracted some criticism. Certain legal experts have argued that the selection process for panel members was flawed, that the panel’s experts lacked the necessary expertise to evaluate controversial facts, and that the panel did not cite its evidential sources.

Some also accused certain members of impartiality, referencing previous public comments on the Israel-Hamas dispute. These critical remarks gained media attention and were echoed by various outlets.

It is important to clarify that the panel’s mandate was only to advise Khan on his decision to request arrest warrants. Ultimately, it is Khan’s work and his evaluation of the facts – not the panel’s – that will be reviewed by the court. Thus, the controversies surrounding the panel’s role are possibly overstated.

Serious consequences

Finally, and perhaps most importantly, what will happen next should the court accept Khan’s request and issue arrest warrants? The ICC’s history of issuing arrest warrants is mixed, with well-known defendants such as Vladimir Putin, Omar al-Bashir, Saif al-Islam Gaddafi and Joseph Kony still at large.

The warrants are also unlikely to lead to arrests in the current case. It is hard to imagine Israel handing over its prime minister, Benjamin Netanyahu, or its defence minister, Yoav Gallant, to the Hague. And it is just as unlikely that Palestine will hand over Yahya Sinwar, the leader of Hamas.

However, these warrants are expected to have significant consequences, particularly for Israel. To begin with, Israeli leaders will probably avoid travelling to any of the ICC’s member states, as these countries are obligated to arrest them upon entry.

The same faith is less likely to harm Palestine’s foreign affairs given that these are led by the Palestinian Authority and not by Hamas.

Should the ICC determine that Israel’s leaders are responsible for committing war crimes and crimes against humanity, this decision will probably lead to increased political isolation and sanctions.

Since the start of the war in Gaza, several countries have suspended the sale of weapons to Israel. The UK followed suit in early September, announcing that it would suspend 30 out of 350 arms export licenses to Israel. This decision could easily be expanded in scope.

The economic impact of an ICC decision to issue arrest warrants would also be severe. It may lead certain investors and funds to disengage and divest from Israel. Many funds have ethical policies that prevent them from engaging in activities that support or contribute to the commission of war crimes and crimes against humanity.

The effect of the decision could reverberate through the ICC, too. In June, the US House of Representatives passed legislation to sanction the ICC and its officials for requesting arrest warrants against Israeli leaders.

This legislation is unlikely to be accepted by the US Senate and become law. But the upcoming US elections, and the prospect of a Republican administration, may not bode well for Khan and his staff.

During his previous term in the White House, Donald Trump imposed personal sanctions on Bensouda in response to her investigations into alleged crimes committed in Afghanistan and Palestine.

There is no doubt that the arrest warrants for the leaders of Israel and Hamas, if issued, will have significant implications. But the extent to which they will affect this decades-old conflict, and whether they will help enforce the international rule of law, is not yet clear.