Karim Khan, the chief prosecutor of the International Criminal Court (ICC), in May asked judges of this body to issue arrest warrants for crimes against humanity and war crimes against (then head of Hamas in Gaza, since killed by Israel ), Mohammed Diab Ibrahim Al-Masri (or , commander of Hamas’ military wing, may have been murdered) and (who was head of Hamas’ political bureau abroad, also killed by Tel Aviv), for crimes committed on Israeli territory and Palestinian at least from October 7, 2023.
The British jurist also requested arrest warrants against the Israeli Prime Minister, , and the then Minister of Defense, , for the same crimes, committed in the Gaza Strip since October 8, 2023.
The petition was an important step in the effort to bring justice to victims of international crimes in Israel and Palestine. But it needed ratification by the three judges of the ICC Preliminary Matters Chamber, who had to see if there were reasonable grounds to believe that these designated men deserved to be so and would then issue the arrest warrants.
“No common soldier, no commander, no civilian leader, no one can act with impunity,” Khan defended. It has taken months, but the decision is here, hot from this Thursday: .
However, despite the endorsement it represents for the Palestinian Government and for international and local organizations that have been denouncing what is happening in the Palestinian strip for more than a year, this support evaporates given the low probability that these orders have of being executed. Without arrests, there is no trial. Without a trial, there is no assumption of responsibilities, since the International Criminal Court does not judge people in absentia.
But why is it unlikely that the accused will be arrested? There are several reasons. The first and most obvious is that none of those identified will voluntarily surrender to be prosecuted. Netanyahu, upon learning of the step taken by the prosecutor, was already outraged, calling the request a “moral outrage of historic proportions” and accusing him, as is customary when faced with any criticism of Israeli politicians (not the State of Israel or the Jewish people who people it in part) with “anti-Semitism”.
Hamas, on this point, is similar to the rival leader, because it alleged that “the victim was equated with the executioner” and refused to recognize the power of the Court.
Mohamed Deif, in a police image from Israel.
Second, none of the defendants are likely to be placed in a position to be detained and handed over to the ICC because Israel did not sign the one that established the ICC. Its main ally, the United States, did not do so either. This would ensure that Netanyahu and Gallant could travel to the US without fear of arrest. It is true that now the doors of countries that are signatories would be closed to them and that, in theory, they would be forced to arrest them if they set foot on their territory, by virtue of the commitments acquired by the aforementioned Statute.
In the case of the Hamas leaders, Sinwar and Haniyeh no longer exist, they have been killed by Israel, and so has Deif, but this point is only confirmed by Tel Aviv, not the militia party. However, if he is still alive, he is still hiding in Gaza and his greatest danger would not be an arrest, but an enemy bomb or gunshot. Palestine, however, is a member state of the ICC, a status it has been able to access thanks to its recognition as an observer state, not a member, in the United Nations. Technically, it is obliged to cooperate with the court, also, to the extent of its possibilities, taking into account that Hamas has ruled Gaza since 2007, after winning the elections.
There is a third reason for the arrests ordered this Thursday: the ICC depends on its member states to enforce its actions. It has no independent police force or the ability to execute arrest warrants. Without the cooperation of these countries, nothing moves forward.
The ICC has 124 states, while the United Nations has 193 member states. This disparity makes clear the gap between what the ICC aims to achieve – namely, universal accountability for international crimes – and what it can achieve in practice when it lacks the support of involved or non-aligned countries.
the Russian president, accused in 2023 of crimes against humanity, above all, for crimes of “illegal deportation of the population” and “illegal transfer of the population” in Ukraine. The president’s international movements have been very limited since the invasion of the neighboring country began in February 2022, and he has dedicated himself to going to friendly countries where he knew they would not accept him. angelsbecause they are not signatories to the Rome Statute. Last August he did go to , which theoretically should have stopped him, but there was nothing.
The request for arrest warrants will undoubtedly complicate relations between Israel and its ICC member allies. That is why what is known today is more valuable because, although in practice it will have limited effects, it shows the commitment of the international community with the objective of ending impunity for international crimes.
