The Hague is seeking arrest warrants for Netanyahu, Hamas leaders. What happens next?

The Hague: The International Criminal Court prosecutor’s office has requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defence chief Yoav Gallant, and also for three Hamas leaders – Yahya Sinwar, Mohammed Deif and Ismail Haniyeh – for alleged war crimes and crimes against humanity.

Here is a look at what happens next, and how the ICC prosecutor’s move might impact diplomatic relations and other court cases focused on Gaza.

Hamas leader Hamas Yahya Sinwar and Israel PM Benjamin Netanyahu.Credit: Marija Ercegovac

What happens next at ICC?

Prosecutor Karim Khan’s request goes to a pre-trial chamber. The chamber will be composed of three magistrates: presiding judge Iulia Motoc of Romania, Mexican judge Maria del Socorro Flores Liera and judge Reine Alapini-Gansou of Benin.

There is no deadline for judges to decide whether to issue arrest warrants. In previous cases, judges have taken anywhere from just over a month to several months.

If the judges agree there are “reasonable grounds” to believe war crimes or crimes against humanity have been committed, they will issue an arrest warrant.

The warrant must name the person, the specific crimes for which an arrest is sought and a statement of facts which are alleged to constitute those crimes.

Judges can amend arrest warrant requests and grant only portions of what the prosecutor is seeking. Charges can also be changed and updated later.

Israeli and Hamas leaders have dismissed allegations of committing war crimes, and representatives of both sides criticised Khan’s decision.

Will Netanyahu, Hamas leaders be arrested?

The ICC’s founding Rome statute combined with jurisprudence from past cases involving arrest warrants against sitting heads of state oblige all 124 ICC signatory states to arrest and hand over any individual subject to an ICC arrest warrant if they set 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 ICC’s assembly of member states and ultimately a referral to the UN Security Council.

Can an ICC investigation or warrant be paused?

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 indefinitely.

In past cases where a state has ignored its obligation to arrest an individual facing an ICC warrant, they have received a procedural slap on the wrist at most.

Israel or the Palestinian authorities could also formally petition the office of the prosecutor to defer the case because they are investigating or prosecuting the same people for substantially the same alleged criminal acts themselves.

The prosecutor would then need to pause the case and review if the state which requested the deferral is indeed carrying out a genuine investigation. If the prosecutor deems the national investigations are not sufficient, he can apply for judges to reopen the investigation.

Can they still travel?

Yes, they can. Neither the application for a warrant nor the issuance of an ICC arrest warrant curbs an individual’s freedom to travel. However, once an arrest warrant has been issued, they risk arrest if they travel to an ICC signatory state, which may influence their decision-making.

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

Will this influence other cases?

Not directly, but perhaps indirectly. The ICC application is a separate matter to, for example, court cases demanding an arms embargo against Israel or South Africa’s attempts at the International Court of Justice to seek a halt to Israel’s offensive on Rafah.

If the judges decide there are reasonable grounds to believe Netanyahu and Defence Minister Yoav Gallant are committing war crimes and crimes against humanity in Gaza, it could strengthen legal challenges demanding an arms embargo elsewhere as numerous states have provisions against selling arms to states which might use them in ways that violate international humanitarian law.

Past cases

The ICC has issued arrest warrants against 42 people, half of whom have been detained with the help of member states.

A handful - primarily from Africa - have been tried and are serving their sentences.

The court has previously issued arrest warrants against former Sudanese president Omar al-Bashir, Saif al-Islam Gaddafi, the son of the late Libyan leader Muammar Gaddafi, and Russian President Vladimir Putin.

In 1998, the former dictator of Chile, General Augusto Pinochet, was arrested at a London hospital by police acting on a request from Spain.

While not the work of the ICC, the arrest of Pinochet, then 82, on an Interpol Red Notice which alleged he committed atrocities against Spanish citizens, sent shockwaves through the global political class, as it showed that heads of state could face consequences from international court orders for past human rights abuses. He was released on medical grounds in 2000.

Reuters with Chris Zappone

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