A future arrest warrant for Israeli Prime Minister Benjamin Netanyahu could lead to “pressure” by Israel’s Western allies and Netanyahu’s own government for a ceasefire in southern Gaza.
This is the view of experts reacting to the announcement by Karim Khan, the prosecutor of the International Criminal Court (ICC), on Monday indicating that he was seeking arrest warrants for Hamas and Israeli leadership over the situation in the Palestinian territory.
“It is highly likely that the potential warrants in the Palestine situation will have no effect on the situation in Gaza,” said Windell Nortje, senior lecturer in criminal justice from the University of the Western Cape. “However, it might increase pressure on the Knesset [the Israeli parliament] to force Netanyahu to cease his military operation in Rafah as well as encourage pressure from some Western states.”
Khan’s announcement, however, only indicates he is at the beginning stages of possible prosecution.
“Khan must now convince a panel of judges in a pre-trial chamber of the ICC that there are ‘reasonable grounds to believe’ that the identified individuals perpetrated the alleged crimes,” said international criminal law professor Gerhard Kemp from the University of West England, Bristol.
The pre-trial chamber of the ICC in The Hague is one of three chambers of that court. The other two are the trial chamber, where trials are heard, and appeals chambers.
Should the pre-trial chamber approve and issue the arrest warrants, the responsibility then falls on the 124 member states to the ICC — including SA — to secure and arrest any of the five should any enter a member state’s jurisdiction.
“The ICC does not have a police force,” Nortje said.
Khan on Monday listed Netanyahu and Israeli defence minister Yoav Gallant for charges over war crimes including starvation and targeting a civilian population. Khan also seeks arrest warrants for three Hamas leaders — Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh — for war crimes, listing extermination and hostage taking during Hamas’ invasion of Israel in October 2023.
Rule of law
Reactions to Khan’s announcement have been mixed.
SA, which has been litigating against Israel since January over alleged violations of the Genocide Convention at the International Court of Justice (not to be confused with the ICC), said it welcomed Khan’s decision. In a statement late on Monday, the office of President Cyril Ramaphosa said: “The law must be applied equally to all to uphold the international rule of law.”
France announced it “supports the ICC, its independence and the fight against impunity in all situations”. Echoing France’s support for the ICC, Belgium foreign minister Hadja Lahbib said on social media: “Crimes committed in Gaza must be prosecuted at the highest level, regardless of the perpetrators.”
A spokesperson for the German foreign ministry said focusing on both Hamas and Israeli leaders gives “the false impression of equivalence”. Germany, however, praised the ICC and has been a longtime supporter of the court.
‘Outrageous’
The US, Israel’s biggest ally, dismissed the warrant announcement, with US President Joe Biden declaring the potential warrant against Netanyahu “outrageous”.
Netanyahu is not the first leader of a state to face a potential arrest warrant from the ICC. Former Sudanese president Omar al-Bashir and Russian President Vladimir Putin had arrest warrants approved by the pre-trial chamber. Neither, to date, has faced prosecution at the ICC.
Noting that Bashir and Putin had not faced the ICC, Kemp said that when the ICC issued a warrant “the accused will, in principle, have to be careful where they travel”.
Putin’s travels were affected by his warrant in 2023, when he was invited to the Brics summit in Johannesburg. SA, as a member state to the ICC, was obliged to arrest him. As a result Putin did not attend in person.
Kemp and Nortje stressed that, at the moment, there are no arrest warrants. “The application as it stands does not have any legally binding effect on any of the named individuals,” Nortje said.
However, for Kemp, “Khan’s public announcement is very significant from a public interest point of view and to make the case to an obviously very divided worldwide audience.”
They expect the pre-trial chamber to make its decision in the next few months.
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