What’s next after ICC issued arrest warrants against Israeli leaders

Judges at the International Criminal Court (ICC) issued arrest warrants on Thursday for Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, as well as a slain Hamas leader for alleged war crimes and crimes against humanity allegedly committed during the ongoing war between Israel and the Palestinian terror group in Gaza.

Here is a look at what could happen next, and how the ICC prosecutor’s move might affect diplomatic relations between Israel and ICC member states:

Will Netanyahu and Gallant be arrested?

All 124 member states of the ICC are obliged by the court’s founding statute to arrest and hand over any individual subject to an ICC arrest warrant if they set foot on their territory, but the court has no means of enforcing such an arrest. It has no police force, so the arrest of suspects must be carried out by a member state or a cooperative state.

ICC members include all European Union countries, the United Kingdom, Canada, Japan, Brazil and Australia. In the Middle East region, the Palestinian Authority and Jordan are ICC members. Israel is not a member state, nor is the United States.

Several leaders of member states, including Israeli allies such as France, Canada and the Netherlands, said they would respect the warrants, and would thus carry out the arrests if the leaders visit.

The European Union’s top diplomat, Josep Borrell, said the court’s decision “has to be respected and implemented,” telling reporters in Amman that it was “binding” on all state parties of the court, including all EU members.

The court bases its jurisdiction over Israeli officials on the fact that the Palestinian Authority was admitted as a member state in 2015 and that the alleged crimes were committed on territory that the court recognizes as belonging to the Palestinian Authority — despite the PA not ruling Gaza since Hamas ousted it in a bloody coup in 2007. The court can prosecute alleged atrocity crimes committed by nationals of member states and crimes committed by anyone, regardless of their nationality, on the territory of member states.

What are the alleged crimes that the court issued warrants for?

The ICC’s judges issued the warrants on charges that Israel has targeted civilians in Gaza and used starvation as a method of war — both claims vehemently denied by Israel.

“The Chamber considered that there are reasonable grounds to believe that both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity,” the three-judge panel wrote in its unanimous decision to issue warrants for Netanyahu and Gallant.

Israel strongly rejects the accusations, pointing to the relatively low civilian-to-combatant ratio among the casualties in Gaza and the terror group’s use of civilians as human shields, while highlighting its numerous efforts to avoid hitting civilians and to expand humanitarian aid into the enclave despite regular looting by gangs and terror groups.

The court also issued a warrant for Hamas military chief Muhammed Deif, for crimes committed during and after the October 7, 2023, onslaught in Israel, during which Hamas and other armed groups killed over 1,200 people and took over 250 hostages, in an attack that overtly targeted civilians in their homes and at a music festival and featured widespread documented atrocities.

Israel says Deif was killed by an IDF strike in Gaza in July, and while Hamas has not officially confirmed his death, a report this month said the terror group acknowledges he is no longer alive.

The judges wrote that there are “reasonable grounds to believe” that Deif, then the leader of Hamas’s al-Qassam Brigades military wing “is responsible for the crimes against humanity of murder; extermination; torture; and rape and other forms of sexual violence; as well as the war crimes of murder, cruel treatment, torture,; taking hostages; outrages upon personal dignity; and rape and other forms of sexual violence.

“The Chamber also found that there are reasonable grounds to believe that the crimes against humanity were part of a widespread and systematic attack directed by Hamas and other armed groups against the civilian population of Israel,” the court’s statement read.

The court’s prosecutor had originally sought warrants against Hamas leaders Yahya Sinwar and Ismail Haniyeh for the same allegations but withdrew the request after both were killed, instead pushing ahead with the measure against Deif, apparently unconvinced that he is truly dead.

Can the ICC warrants be paused or suspended?

The court’s rules allow for the UN Security Council to adopt a resolution that would pause or defer an investigation or a prosecution for a year, with the possibility of renewing that annually.

After a warrant is issued, the country involved or a person named in an arrest warrant can also issue a challenge to the jurisdiction of the court or the admissibility of the case.

A case can be deemed inadmissible at the ICC when it is already being investigated or prosecuted by a state with jurisdiction over the crimes alleged.

But the court has made it clear in the past that this exemption could only apply when a state is investigating or prosecuting the same people for substantially the same alleged crimes. An investigation into corruption charges, such as those featured in Netanyahu’s ongoing corruption trial, would not meet that “same person, same conduct” rule.

Since an Israeli court is not currently investigating Netanyahu and Gallant for similar charges as the ICC, that rule does not apply, at least in the eyes of the court. The Netanyahu government has resisted relentless pressure from the opposition and others to launch a state commission of inquiry into the failure to prevent the October 7 massacre and into the prosecution of the war ever since.

If an Israeli court begins a formal investigation against Netanyahu and Gallant and requests that the ICC delay its investigation in favor of a national investigation, court procedure says that the prosecutor will pause the case and review if the state is indeed carrying out a genuine investigation.

If the prosecutor deems the national investigations are insufficient, he can apply for judges to reopen the investigation.

Can Netanyahu and Gallant still travel and meet with other world leaders?

Yes, they can. The issuance of an ICC arrest warrant is not a formal travel ban. However, they do risk arrest if they travel to an ICC signatory state, which may influence their decision-making.

Attorney Yuval Kaplinsky, a former head of the International Law Department at the State Attorney’s Office, said the warrants mean that if either Netanyahu or Gallant go to any of the countries that are party to the ICC, “there is a chance that they will be arrested and extradited [for trial in The Hague]. I assume they will act with caution and avoid finding themselves in such a situation.”

Speaking to Channel 12 news, Kaplinsky said that if the prime minister, for instance, wants to visit an ICC-party country such as the UK or Belgium, to speak to the Jewish community and “shout that the world is antisemitic,” they likely won’t give him assurances that he would not be arrested.

“But if he was coming for a summit with moderate Arab states in order to forge an international coalition to improve the situation in the Middle East, there is a chance that he might [get such assurances].”

He noted that the prime minister can continue to fly directly to the US, “because there, there is no problem.”

There are no restrictions on political leaders, lawmakers or diplomats from meeting individuals with an ICC arrest warrant against them. Politically, however, public perceptions of this may be bad in some countries.

Will ICC arrest warrants influence other international legal cases?

Not directly, but perhaps indirectly.

The ICC application is a separate matter from, for example, court cases demanding an arms embargo against Israel or South Africa’s case at the UN’s top court, the International Court of Justice, which accuses Israel of violating the Genocide Convention in Gaza.

However, a decision by ICC judges that there are reasonable grounds to believe Netanyahu and former defense minister Yoav Gallant are committing war crimes and crimes against humanity in Gaza could strengthen South Africa’s ICJ case, as that court also looks at other courts’ determinations.

The decision to issue a warrant can also bolster legal challenges demanding an arms embargo elsewhere, as numerous states have provisions against selling arms to states that might use them in ways that violate international humanitarian law.