By Stephanie van den Berg
THE HAGUE (Reuters) – The International Criminal Court’s Public Prosecution Service has applied for arrest warrants against Israel’s prime minister Benjamin Netanyahu and its defense chief, as well as three Hamas leaders for alleged war crimes and crimes against humanity.
Here’s a look at what happens next, and how the ICC prosecutor’s move could affect diplomatic relations and other legal proceedings focused on Gaza.
WHAT HAPPENS NEXT AT ICC?
Prosecutor Karim Khan’s request goes to a pre-trial chamber. The chamber will consist of three magistrates: President Iulia Motoc from Romania, Mexican Judge Maria del Socorro Flores Liera and Judge Reine Alapini-Gansou from Benin.
There is no deadline for judges to decide whether to issue arrest warrants. In previous cases, judges have taken a little more than a month to several months.
If the judges agree that there are ‘reasonable grounds’ to believe that war crimes or crimes against humanity have been committed, they will issue an arrest warrant. The warrant must state the name of the person, the specific crimes for which arrest is requested, and a summary of the facts that would constitute those crimes.
Judges can modify warrant requests and grant only parts of what the prosecutor is seeking. Costs can also be changed and updated later.
Israeli and Hamas leaders have rejected accusations of committing war crimes, and representatives from both parties criticized Khan’s decision.
WILL NETANYAHU AND THE HAMAS LEADERS BE ARRESTED?
The ICC’s Rome Statute, combined with case law from previous cases involving arrest warrants against sitting heads of state, requires all 124 ICC signatory states to arrest and extradite any person subject to an ICC arrest warrant if he steps foot on their territory.
However, the court has no means to enforce an arrest. The sanction for not arresting someone is a referral back to the meeting of member states of the ICC and ultimately a referral to the UN Security Council.
CAN AN ICC INVESTIGATION OR PROTECTION DEPOSIT BE INTERRUPTED?
The court’s rules allow the UN Security Council to adopt a resolution that would pause or postpone an investigation or prosecution for a year, with the option to extend that indefinitely.
In previous cases where a state has ignored its obligation to arrest a person facing an ICC warrant, they have at best received a procedural slap on the wrist.
CAN NETANYAHU AND HAMAS LEADER YAHYA SINWAR STILL TRAVEL?
Yes, they can. Neither the application for an arrest warrant nor the issuance of an ICC arrest warrant restricts an individual’s freedom to travel. However, once an arrest warrant is issued, they risk arrest if they travel to an ICC signatory state, which could affect their decision-making.
There are no restrictions on political leaders, lawmakers or diplomats from meeting individuals who have an ICC arrest warrant issued against them. Politically, however, the optics of this may be bad.
WILL THIS APPLICATION FOR WARRANTS AFFECT OTHER CASES?
Not directly, but perhaps indirectly.
The ICC’s application is separate from, for example, lawsuits demanding an arms embargo on Israel, or South Africa’s efforts at the International Court of Justice to end Israel’s offensive on Rafah.
If the judges decide that there are reasonable grounds to believe that Netanyahu and Defense Minister Yoav Gallant committed war crimes and crimes against humanity in Gaza, it could increase legal challenges by seeking an arms embargo elsewhere, as numerous states have provisions against the sale of weapons to states that might use weapons. in a manner contrary to international humanitarian law.
(Reporting by Stephanie van den Berg; Editing by Richard Lough and Alison Williams)
