The long wait is over. On Friday, International Criminal Court (ICC) chief prosecutor Karim Khan issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu, former defence minister Yoav Gallant and Hamas military leader Ibrahim al Masri on charges of war crimes and crimes against humanity. This bold move by the ICC represents a critical moment in the lsrael-Gaza war.
Specifically, the ICC alleges that Netanyahu and Gallant used “starvation as a method of warfare” by restricting the delivery of vital humanitarian aid to Gaza. In addition, Netanyahu and Gallant are accused of intentionally targeting civilians in Gaza. The warrant against Al Masri focuses on mass killings during the October 7 attack last year.
On May 20, Khan first announced that the court was seeking arrest warrants against both Israeli and Hamas leaders. The warrants needed to be confirmed by an ICC pretrial chamber. The six month delay in finalising the issuing of the warrants was longer than most expected and exposed the court to criticism. As the months passed, many asked why, in the case of the war in Ukraine, the ICC managed to issue arrest warrants against Vladimir Putin and Maria Lvova-Belova more speedily — just one month after the warrants were first requested.
The delay can, at least partly, be attributed to the acutely sensitive nature of the arrest warrants. Some suggested that Tel Aviv put pressure on the court to delay or stop the issuing of the warrants. Crucially, the issuing of the warrants marks the first time an ICC arrest warrant has been issued against an ally of the US and a country that has long considered itself a Western-style democracy. Whereas various European states, including the Netherlands, have already indicated their approval of the issuing of the warrants, the US has been quick to condemn them, stating that the ICC has no jurisdiction to take such action.
The issuing of the warrants is a call to action and presents a critical opportunity for all countries to respond to the dictates of international law
Khan initially sought arrest warrants against three Hamas leaders, including Ismail Haniyeh and Yahya Sinwar. But Israel killed Haniyeh on the last day of July this year and Sinwar was killed by the IDF in Gaza on October 16. By taking justice into its own hands and assassinating Haniyeh and Sinwar, Israel showed further contempt for international criminal justice. These assassinations undermine the work of the ICC. At the time of the killings one would have expected the ICC prosecutor to condemn such obstruction of the ICC’s work.
Extraordinarily, it is not clear whether the warrant against Al Masri, also known as Mohammed Deif, can be executed since it is not clear whether he is still alive. Israel claims to have killed Deif in an airstrike in July. Hamas has not confirmed or denied this. The ICC prosecutor’s office said it would continue to gather information on his reported death.
The issuing of the arrest warrants coincides with another crisis at the ICC. Khan is facing allegations of sexual misconduct, which will be investigated by external investigators. The charges involve claims about a woman who worked directly for him. Khan has denied the allegations. Naturally, some are asking whether the charges against Khan are an attempt to discredit him.
It is clear that the issuing of the warrants has great symbolic value in sending a message that no one is above the law. But what are the practical implications of the arrest warrants? All member states of the ICC — 124 countries — are now legally obliged to arrest Netanyahu should he travel to any of these states. While it is unlikely that Netanyahu will be arrested any time soon, he will be inhibited in travelling in the same way Russian President Putin has had his international travel restricted. Putin has declined invitations to visit ICC member countries such as South Africa and Brazil for fear of being arrested.
Netanyahu might still travel to countries that are not members of the ICC, including the US, China and Russia. He is likely to continue to travel to the US as he did earlier this year. Under president-elect Donald Trump, the doors of Trump’s private residence, Mar-a-Lago, are likely to remain wide open to him.
Australia has proven to be ahead of the game. The Australian government recently refused to grant a visa to former Israeli justice minister Ayelet Shaked when she was invited to participate in a conference in Australia.
The death toll in Gaza now exceeds 44,000. Nearly 70% of this number are women and children. Former ICC prosecutor Luis Moreno Ocampo said in May that the issuing of the warrants would provide “some sanity” and show that there were legal limits to war.
Judging from Netanyahu’s tough talk since the start of the conflict, he is unlikely to stop his attacks on Gaza, Lebanon and Syria. But symbolism and international solidarity matter. The issuing of the warrants is a call to action and presents a critical opportunity for all countries to respond to the dictates of international law.
• Swart is visiting professor at Wits law school
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