What is the competence of the International Criminal Court to issue an arrest warrant for the Prime Minister of Israel?

Reporter | Anjing

Editor|Liu Haichuan

As the wave of pro-Palestinian protests at American universities continues, Israel is facing a new diplomatic problem: the International Criminal Court (ICC), headquartered in The Hague, Netherlands, may issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoaf Gallant, and Defense Forces Chief of Staff Hezi Halewi.

The ICC declined to comment on the claims. But in the past two weeks, Netanyahu has turned to US President Joseph Biden for help as a number of Israeli officials have said the ICC is ready to act, and Israeli Foreign Minister Israel Israel Katz has even issued advance warnings to Israeli embassies abroad.

In order to support Israel, the members of the G7, including the United States, have put pressure on the International Criminal Court. Members of the US Congress began drafting a new bill threatening to sanction ICC officials if necessary.

ICC Warrant for Arrest?

The Times of Israel reported on April 29, 2024 that Israeli officials have been trying to prevent the ICC from issuing arrest warrants for Netanyahu and other senior officials over the past few weeks. Officials have revealed that the ICC may issue a "secret arrest warrant" and will only know that they will be arrested when the relevant Israeli officials arrive at the ICC member states.

Netanyahu issued a message directly on Platform X, announcing that Israel would not accept the ICC's violation of Israel's right to self-defense. He accused the ICC of setting a "dangerous precedent" that threatens soldiers and officials in democracies to counter terrorism and resist aggression.

According to US media reports, Netanyahu expressed concern about the ICC's issuance of an arrest warrant during a phone call with Biden last Sunday, calling on the United States to assist. U.S. officials said there was no clear indication that the ICC was preparing to issue an arrest warrant, but that some ICC members and NGOs were pressuring ICC prosecutors.

On the day of Netanyahu's phone call with Biden, Israeli Foreign Minister Katz sent a message to Israeli embassies abroad, warning that if the ICC takes action, anti-Semitic actions around the world will increase and pose a security risk to embassies.

British human rights lawyer Karim Khan, the chief prosecutor of the ICC, has launched an investigation into Palestine and Israel since 2021 into events since the 2014 Israeli-Palestinian conflict, including Israel's forced construction of Jewish settlements in the West Bank. During a visit to Egypt last October, Karim Khan announced that the current round of the Israeli-Palestinian conflict would also be part of the ICC's investigation.

If the ICC prepares to issue arrest warrants for senior Israeli officials, Hamas officials will be treated in the same way. In response to Israeli and U.S. media reports on arrest warrants, Karim Khan's office said it would not respond to media reports.

Unlike the International Court of Justice in The Hague, the ICC is not a United Nations agency, but a court established under the Rome Statute of the International Criminal Court to prosecute and try individuals. The International Court of Justice, a United Nations body, deals with legal disputes between States, and South Africa sued Israel for genocide at the International Court of Justice late last year.

The ICC can only prosecute individuals on four counts – genocide, crimes against humanity, war crimes, and aggression — that occurred on or after 1 July 2002. This date is also the date of the establishment of the ICC.

The ICC may exercise jurisdiction if the offence in question is committed in the territory of a Member State of the ICC and in a country that recognizes the jurisdiction of the ICC, or if the individual who commits the offence is a citizen of the Member State of the ICC or is authorized by the Security Council of the United Nations.

The ICC has a total of 124 member countries, and major European countries such as France, Germany, and the United Kingdom are all members of the ICC, but Israel, the United States, Russia, China, Turkey, Saudi Arabia, etc. are not members of the ICC. The ICC recognized Palestine as a member in 2015 and therefore has the power to investigate incidents in the Israeli-Palestinian conflict.

The ICC is financed mainly by member state contributions, with Japan, Germany, France, and the United Kingdom being the largest contributors, and the institution's budget for 2023 is 169 million euros. The Court has 18 judges, each from a variety of Member States, whose term of office is nine years.

According to statistics on the ICC's official website, the court has accepted a total of 31 cases and issued 42 arrest warrants so far. The ICC itself has no police presence and relies solely on member states to carry out arrests, with a total of 21 arrests.

Since its inception, the ICC has also sparked various controversies. Some critics argue that the ICC's powers are too limited to effectively punish war criminals, while others argue that the ICC's jurisdiction threatens national sovereignty and that some prosecutions are politically biased. The ICC has indicted the vast majority of its clients from African countries, and the court has issued arrest warrants for former Sudanese President Omar al-Bashir, former Libyan supreme leader Omar Muammar Gaddafi, Russian President Vladimir Putin, and other heads of government. Former Kenyan President Uhuru Kenyatta was also indicted, but the case was dropped due to lack of evidence.

The West stands up for Israel

Although Israel is not a member of the ICC, once the ICC issues an arrest warrant, the relevant countries will need to arrest Netanyahu and other senior Israeli officials who have been included in the arrest warrant when they enter ICC member states such as France, Germany, and the United Kingdom. In practice, member states do not necessarily carry out arrests, but arrest warrants will restrict overseas visits by Israeli officials and further undermine Israel's international image.

Israel's biggest backer, the United States' attitude toward the ICC has been changing as the respondents have changed.

When the ICC issued an arrest warrant for Gaddafi in 2011, the White House issued a statement supporting the ICC's decision, saying that the ICC's arrest warrant once again showed that Gaddafi had lost the legitimacy to run Libya. As for the possible arrest warrant of Netanyahu by the ICC, the White House condemned the ICC for not having jurisdiction, "We do not support the investigation." ”

U.S. House Speaker Mike Johnson issued a statement on Monday urging the Biden administration to use "all available tools" to pressure the ICC, warning that if the Biden administration does not act, the ICC may later issue arrest warrants for U.S. political leaders, diplomats and military personnel.

House Foreign Affairs Committee Chairman Mike McCaul revealed that House members are drafting a bill to sanction ICC officials investigating the United States and its allies if needed.

When Donald Trump was president of the United States, the ICC launched an investigation into war crimes in the war in Afghanistan, and American soldiers and intelligence agents were subject to possible prosecution. Trump then announced sanctions against ICC prosecutor Fatou Bensouda and other officials, barring them and their families from entering the United States and freezing their assets in the United States.

In addition to the United States, diplomats from other G7 countries have also lobbied the ICC not to issue arrest warrants, arguing that they would undermine the Palestinian-Israeli temporary ceasefire talks that are expected to be restarted, according to US and Israeli media reports.

Palestinian-Israeli talks on a temporary ceasefire have reached an impasse, but US officials have recently revealed that Israel has lowered the conditions for the release of the hostages. Israel had previously demanded that Hamas release at least 40 hostages in the first phase, but now reduced the demand to 33, in exchange for the release of large numbers of Palestinian prisoners and the entry of humanitarian aid into Gaza. The temporary ceasefire of the new proposal will last for 40 days.

U.S. Secretary of State Antony Blinken and British Foreign Secretary David Cameron, who are visiting Saudi Arabia, both urged Hamas to accept the new proposal. In order to persuade Israel to cease fire, the United States has restarted its lobbying for Saudi Arabia to normalize relations with Israel.

If Hamas agrees to restart talks, the Israeli delegation plans to travel to Egypt on Tuesday local time to attend talks. At a time when Palestinian-Israeli talks on a temporary ceasefire are uncertain, Hamas and the Palestinian National Liberation Movement, which controls the West Bank, have begun reconciliation talks.

Chinese Foreign Ministry spokesman Lin Jian confirmed on Tuesday that at the invitation of the Chinese side, representatives of the Palestinian National Liberation Movement (Fatah) and Hamas came to Beijing for consultations and in-depth and candid dialogue on promoting intra-Palestinian reconciliation.

Lin Jian said that Fatah and Hamas have fully expressed their political will to achieve reconciliation through dialogue and consultation, discussed and made positive progress on many specific issues, and agreed to continue this dialogue process and strive to achieve Palestinian unity and reunification at an early date. The two sides highly appreciated China's firm support for the just cause of the Palestinian people to restore their legitimate national rights, thanked China for its efforts to promote the strengthening of Palestinian internal unity, and reached agreement on the idea of the next step of dialogue.