Article By: Name : Pushkar Gulia

University: Himachal Pradesh National Law University, Shimla

Course: 3^rd Semester (Ba. LLB Hons.)

On November 21, 2024, The International Criminal Court (ICC) issued arrest warrants against the Israeli leaders Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant on the ground of crimes against humanity during the Gaza conflict. These charges include the war crime starvation method of warfare and crimes against humanity such as mass murder, inhumane acts. The ICC also issued a warrant for Hamas military commander Mohammed Deif for similar crimes, even though his death in an Israeli airstrike remains unconfirmed.

Grounds and Jurisdiction:

The ICC’s Pre-Trial Chamber I determined there were reasonable grounds to believe Netanyahu and Gallant bore criminal responsibility for the war crime of starvation as a method of warfare, mass murder, other inhumane acts. According to the Article 12 of the Rome statue, The ICC’s jurisdiction in this case is based on the territorial jurisdiction of the Palestine, which became a party to the Rome Statute on April 1, 2015. On the other side Israel is not a party to the Rome Statute and does not recognize the ICC’s jurisdiction. On this basis Israel officially challenged the ICC’s jurisdiction on September 26,2024, but the Pre- Trial Chamber rejected these challenges on basis that Israel’s acceptance of the Court’s jurisdiction is not required due to Palestine’s territorial jurisdiction and States cannot challenge the Court’s jurisdiction under article 19(2) prior to the issuance of an arrest warrant. This creates the first time the ICC has issued arrest warrants against leaders of a Western- aligned democratic state.

Practical Impact:

According to Article 89(1) of the Rome Statue obligates ICC member states to comply with requests for arrest and surrender. This states all 125 ICC member states are legally required to arrest Netanyahu and Gallant if they enter in their territories. States must have procedures in their national law to execute these requests. The warrants significantly limit Netanyahu’s and Gallant’s international travel. They risk arrest in any of the 125 ICC members states. This restriction applies even to countries traditionally allied with Israel, including many European Nations. According to Article 87(7) which provides for the consequences of non-compliance, if a state party fails to comply with an arrest request, then the ICC may refer the matter to the Assembly of States Parties or the UN Security Council. This could lead to additional diplomatic pressure or potential sanctions against non-complaint states.

International Reactions:

The EU foreign policy chief Josep Borrell emphasized that the warrants are not politically motivated and should be respected and implemented by all EU member states. Sweden affirmed support for the ICC’s work and its independence. The United States ‘Fundamentally rejects’ the ICC’s decision expressing concerns about the prosecutor’s haste and procedural errors. Israel strongly condemned the warrants, with Netanyahu calling it ‘a dark day in the history of humanity’. On the other side the Palestinian Authority welcomed the decision and urged ICC members to implement it. There is no specific information about India’s official stance on the ICC arrest warrants. To be note that India is not a party to the Rome Statute. Historically, India has maintained its position of non-interference in the internal affairs of other countries and has advocated for peaceful resolution of conflicts through dialogue.

Enforcement Challenges:

The Major powers like the United States, China, and Russia are also not ICC members which further limit the court’s reach. The ICC has no police force or any direct means to arrest individuals. The Court relies entirely on members states to execute arrest warrants. The diplomatic pressure and strategic alliances may present some countries from enforcing the warrants and Netanyahu and Gallant can easily visit non-ICC member states without any risk of arrest. Identifying and locating the accused individuals if they travel internationally may prove challenging. Coordinating arrest efforts across 125 member states requires significant cooperation.

Impact on Conflict:

The warrants represent a major legal and diplomatic blow to Israel, coming after two significant International Court of Justice rulings against Israel in the past year. This marks the first time in ICC history that arrest warrants have been issued against leaders of a regime closely aligned with the West. The warrants offer hope for ending decades of impunity for long-standing serious violations of international law in the Occupied Palestinian Territory. This development could contribute to overcoming long-standing impunity and potentially ending grave crimes in the region. While the immediate impact on the conflict may be limited due to enforcement challenges, the warrants represent a significant step towards accountability and could influence future diplomatic and legal approaches to the Israeli-Palestinian conflict. The ICC prosecutor’s office will continue investigating the situation in Palestine, focusing on both incriminating and exonerating circumstances.

Conclusion:

The ICC’s arrest warrants for Israeli leaders mark a historic moment in international law, as this is the first time the Court has taken action against leaders of a Western-aligned democracy. While Israel and its allies reject the ICC’s jurisdiction, the warrants highlight concerns about human rights violations in Gaza. These legal actions restrict Netanyahu’s and Gallant’s international travel and could impact Israel’s diplomatic relations. However, enforcement remains a challenge since the ICC lacks its own police force and relies on member states for arrests. The response from the international community is divided, with some supporting the ICC’s decision and others opposing it. Despite these challenges, the warrants set a precedent for accountability in global conflicts. While they may not immediately change the situation in Gaza, they bring international attention to the issue and could influence future legal and diplomatic efforts to address alleged war crimes in the region.

References:

• The ICC arrest warrants against Deif, Netanyahu and Gallant explained | Chatham House – International Affairs Think Tank
• The ICC has issued arrest warrants in the Israel-Hamas war. Now what? – Atlantic Council
• What Do ICC Arrest Warrants Mean for Israel and the War in Gaza? | American University, Washington, D.C.
• International Criminal Court Issues Arrest Warrants Against Israeli Prime Minister Netanyahu and Former Defense Minister Gallant | Samuel Estreicher | Verdict | Legal Analysis and Commentary from Justia