International Criminal Court Arrest Warrants

Context:

The Office of the Prosecutor of the International Criminal Court (ICC) has initiated a significant step towards ensuring accountability for the war crimes committed since October 7 of last year by seeking arrest warrants against the leaders of both Hamas and Israel.

Relevance:

GS2-

• Effect of Policies and Politics of Developed and Developing Countries on India’s interests
• Important International Institutions, agencies and fora – their Structure, Mandate.

Mains Question:

The International Criminal Court (ICC) has done well to move against Israel, Hamas leaders for Gaza crimes. Discuss in the context of the recent arrest warrants against the leaders of Hamas and Israel. (15 Marks, 250 Words).

About the International Criminal Court (ICC):

The ICC is a permanent judicial institution established by the Rome Statute in 1998 to investigate, prosecute, and try individuals accused of genocide, war crimes, crimes against humanity, and aggression. It can impose prison sentences on those found guilty.

Background:

• The Rome Statute, the court’s founding treaty, was adopted in July 1998, and the ICC began its operations in 2003.
• Headquarters: The Hague, Netherlands.
• Members: 123 nations are parties to the Rome Statute and recognize the ICC’s authority. Notable exceptions include the US, China, Russia, and India.

• Funding: The ICC is funded by contributions from its member states and voluntary donations from governments, international organizations, individuals, corporations, and other entities.
• Composition:

1. Judges: The ICC has 18 judges from different member countries, elected to non-renewable nine-year terms.
2. The Presidency: Comprised of three judges (a President and two Vice-Presidents) elected from among the judges, the Presidency represents the Court externally and organizes the work of the judges.
3. Judicial Divisions: There are three divisions with 18 judges: Pre-Trial, Trial, and Appeals.
4. Office of the Prosecutor (OTP): The OTP receives referrals and credible information on crimes within the ICC’s jurisdiction, conducts investigations, and prosecutes cases before the Court.
5. Registry: The Registry provides administrative and operational support to the Chambers and the OTP.

Jurisdiction of the ICC:

• Unlike the International Court of Justice, which resolves disputes between states, the ICC prosecutes individuals.
• The ICC can hear a case if:

• The country where the offense occurred is a party to the Rome Statute, or
• The perpetrator’s home country is a party to the Rome Statute.
• The ICC steps in only if the national court is unable or unwilling to prosecute.
• The ICC’s jurisdiction covers offenses committed after July 1, 2002, the date when the Statute came into force.

Relation with the United Nations (UN):

• The ICC is not a UN organization but has a cooperation agreement with the UN.
• The UN Security Council can refer situations outside the ICC’s jurisdiction to the Court, granting it the authority to act.

More on the Issuance of Arrest Warrants:

• October 7, 2023 marks when Hamas launched its lethal attacks, resulting in over 1,500 Israeli deaths and at least 245 hostages taken.
• In response, the Israeli military has conducted a severe and continuous offensive on Gaza, with a death toll now exceeding 35,000, primarily women and children.

• The request for warrants, to be evaluated by an ICC Pre-Trial Chamber, is expected to have a more substantial impact on Israel than on the non-state group.
• Israel’s primary concern lies in the moral equivalence drawn by the prosecutor, who has charged both the democratic national leadership and an armed group intent on its destruction with war crimes and crimes against humanity.
• Apart from Israel’s staunch allies, such as the U.S. and some other governments, most support ICC Prosecutor Karim A.A. Khan’s efforts to achieve a balanced approach.

Accusations Levelled:

• The situation is particularly unflattering for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as they are named for war crimes and crimes against humanity alongside Yahya Sinwar, the head of Hamas, Mohammed Diab Ibrahim Al-Masri alias Deif, the commander-in-chief of the Al-Qassam Brigades, and Ismail Haniyeh, head of the Hamas Political Bureau.
• However, it would have been impossible for the ICC prosecutor to overlook the accusations against the Israeli leadership, including the use of starvation as a war tactic and intentionally targeting civilians.
• Hamas faces charges of extermination, murder, rape, torture, and hostage-taking. Israel has predictably challenged the application, maintaining its stance of legitimate self-defense.

Effectiveness of the Arrest Warrants:

• Many might see the arrest warrants as ineffective, noting that similar warrants against figures like Russian President Vladimir Putin and Sudan’s President Omar al-Bashir have gone unexecuted.
• Despite potential challenges in enforcing these measures, they carry diplomatic consequences since ICC member countries are required to arrest and surrender individuals with outstanding warrants under the Rome Statute.
• This action could further isolate Israel internationally while also solidifying the U.S.-Israeli position on the Palestinian issue.

Subsequent Procedures:

• ICC judges are currently evaluating the evidence to decide whether to issue arrest warrants.
• If the warrants are issued, all 124 ICC member states are required to arrest these individuals if they enter their jurisdictions.

Potential Consequences and Responses:

• The ICC relies on member states to enforce arrest warrants, as it does not have its own enforcement body.
• An issued warrant could restrict the Israeli Prime Minister’s international travel and diplomatic activities, although actual enforcement remains uncertain.

Public Reactions:

• Israel: Strong disapproval, with Foreign Minister Israel Katz calling the warrant request “a historical disgrace.”
• Hamas: Disapproves of actions against its leaders but supports the pursuit of Netanyahu and Gallant.

Conclusion:

Although Israel, like the U.S., is not a member of the ICC, the precedent set by Putin’s case suggests that this does not prevent warrants from being issued against its leaders. Domestically, Prime Minister Netanyahu may leverage this situation to strengthen his political standing. This recent warrant request highlights the ongoing conflict and the complex legal and political issues in the Israel-Palestine situation. The ICC’s involvement underscores its commitment to addressing alleged international crimes, despite enforcement challenges.