What is the International Criminal Court (ICC) and why could it issue arrest warrants against Benjamin Netanyahu and his ministers?

Israel has warned of the possibility that the International Criminal Court (CPI) issue arrest warrants against the country’s top officials for alleged war crimes in Gaza, including the prime minister Benjamin Netanyahu, who on Tuesday said that if that happens it would be a “scandal on a historic scale.” Is that scenario possible in the face of a nation that has not signed the Rome Statute and, therefore, does not recognize the jurisdiction of that court?

“The ICC has no authority over the State of Israel. The possibility of issuing arrest warrants for war crimes against commanders of the Armed Forces and state leaders is a scandal on a historical scale,” he said. Netanyahu in a recorded speech.

Yes ok Israel he has not signed the Rome Statute to be considered part of the ICC, this does not exempt him from being liable to legal action by that court for reasons that we will explain later.

According to the Israeli newspaper Haaretz, in addition to Netanyahu the ICC Prosecutor’s Office would also issue arrest warrants against Defense Minister Yoav Gallant; and the Chief of the General Staff of the Israel Defense Forces (IDF), Herzl Halevi. Lower-ranking officials would not be affected.

Haaretz reported that both the Justice Ministry of Israellike the Army lawyers, are trying to prevent the Fiscal Karim Khan issue the arrest warrants, something that countries friendly to the Hebrew State would also be working on, with USA to the head.

The American newspaper The New York Times reported that ICC also seeks to indict Hamas leaders.

In February, the Missing Families and Hostages Forum called on the ICC to prosecute Hamas leaders.

On Wednesday, during a meeting in Tel Aviv with US Secretary of State Antony Blinken, the president of Israel, Isaac Herzog said “Attempting to use the International Criminal Court against Israel, which fights terrorism, represents a clear and immediate danger to democracies.” and free and peace-loving nations that respect the rules of international law.”

“I call on our allies and friends to oppose and reject such shenanigans,” he continued. “Israel has a very effective judicial system who has persecuted the highest authorities of this country like any citizen. We are proud of it,” he added.

From the past October 7when Israel declared war on Hamas After the Islamist group murdered more than 1,200 people in its territory, the official death toll in Gaza exceeds 34,500, 75% women and children.

Besides, In March the UN already accused Israel of committing a war crime in the Palestinian enclave by depriving the civilian population of food.

While organizations like International Amnesty have reported that in several attacks Israel has “indiscriminately” bombed the civilian population.

The ICC has never issued arrest warrants against Israeli officials.

Yes, it has done so in the context of the war between Russia y Ukraine. In March 2023, she issued an arrest warrant against the Russian president. Vladimir Putin as part of an investigation into possible war crimes and his alleged involvement in the kidnapping of Ukrainian children who were taken to Russia.

As a result of that order, Putin cannot visit countries where he believes he could be arrestedlike the 124 that are part of the ICC.

On this note, We explain how the International Criminal Court works and why States that are not part of it can be reached.

What is the International Criminal Court?

The International Criminal Court (CPI) It is a court of last resort for the prosecution of serious international crimes, such as genocidelos war crimes and the crimes against humanity. The treaty of him, the Rome Statutewas adopted in July 1998. The court became operational in 2003 and succeeded ad hoc tribunals formed in the 1990s to address atrocity crimes committed in the former Yugoslavia and Rwanda.

A total of 124 States belong to the ICC, all of which have ratified the Rome Statute.

Countries that have not signed the Rome Statute and do not accept the court’s jurisdiction include Israel, the United States, Russia and China.

According to an explanation by the AP agency, the ICC becomes involved when countries are unable or unwilling to prosecute the aforementioned crimes on their territory.

The AP recalls that in 2020, the then US president Donald Trump imposed financial sanctions and travel restrictions on the ICC prosecutor and another official in the court’s prosecutor’s office. This is because the ICC was investigating intelligence forces and officials of the United States and its allied countries for possible war crimes in Afghanistana member state of the court.

Trump’s successor, Joe Biden, removed the sanctions in 2021.

The ICC has 17 ongoing investigations, has issued a total of 42 arrest warrants and detained 21 suspects. Its judges have convicted 10 of the accused and acquitted four.

In addition to Africa, the ICC has open investigations in Asia, Europe, the Middle East and Latin America.

Israel, the Palestinians and the ICC

Israel is not part of the ICC. The leaders of this country often criticize international organizations, which they accuse of having a bias against them.

The State of Palestine is party to the Rome Statute of the ICC since April 1, 2015so it has jurisdiction to investigate crimes within its jurisdiction that occurred in the territory of the Palestinian State or those committed by its nationals.

In 2021, the then ICC prosecutor Fatou Bensouda announced an investigation into possible Israeli war crimes in Palestinian territory. Netanyahu He called the decision hypocritical and anti-Semitic.

The current prosecutor of the ICC, Karim Khanvisited Ramallah and Israel last December, and met with Palestinian officials and relatives of Israelis who were killed or captured by Islamists from Hamas during the October 7 attack, AP recalled.

Khan noted that Hamas’ actions were “some of the most serious international crimes that shocked the conscience of humanity, crimes that the ICC was created to address,” and called for the immediate and unconditional release of all hostages. .

Khan added that “international humanitarian laws must still be applied” in the war between Israel and Hamas.

Can a country that is not part of the ICC be taken to court?

Michelle Reyes MilkSenior Attorney at the International Justice Division of Human Rights Watchspoke with Trade about the powers of the court and how it works in cases where a State that has not signed the Rome Statute is involved.

“The jurisdiction of the ICC is activated in two ways: by the link of the territory, that is, when a crime is committed in the territory of a State party, it does not matter who the author is; or by the nationality of the perpetrator, it does not matter where the crime takes place,” explains Reyes.

“That is why we have cases in the ICC against nationals of States that are not parties. The most notable example at this time is the arrest warrant against Vladimir Putin, whose country is not a State party. But Ukraine has recognized the court’s jurisdiction. In the investigation in Ukraine there are arrest warrants against Russian nationals,” she adds.

How is an arrest warrant processed? Michelle Reyes Milk indicates that the arrest warrant is requested by the prosecutor of the International Criminal Court. This order must be approved by the ICC judges. And once approved, all State parties have the obligation to enforce it.

“What happens if that order goes against a national of a State Party who does not wish to cooperate, then we have to wait for that person to be detained by another State Party perhaps on one of their trips. For example, Putin’s spaces are becoming shorter. At the end of last year he had a BRICS summit in South Africa, but he did not travel because this country is a State party and had the obligation to arrest him and hand him over to the ICC in The Hague,” recalls the lawyer.

“The CPI cannot judge the accused in absentia, his presence is required. That’s why cooperation is so important. States need to support the ICC in the execution of that action,” he emphasizes.

Other cases at the ICC

The first person to whom CPI successfully judged was Thomas Lubanga Dylio, former president of the Democratic Republic of the Congo. In March 2012 he was found guilty of war crimes and enlisting and recruiting children under the age of 15 for war.

The ICC has also charged the Sudanese dictator Omar al-Bashir for genocide in the region of Darfur. It was delivered by Sudan in August 2021.

At the time, the ICC ordered the arrest of the president of Libya Muammar Gaddafi on charges related to the repression of anti-government protests in his country in 2011. That same year he was executed by opposition militiamen.

In 2019, the former president of the Ivory Coast Laurent Gbagbo and the youth leader Charles Blé Goudéwere acquitted of crimes against humanity committed after the 2010 presidential elections. Their trial before the ICC had begun in January 2016.

In 2016, former Congolese vice president and military leader Jean-Pierre Bemba and four associates were found guilty of committing offenses against the administration of justice under article 70 of the Rome Statute. The prison sentences have already been served.

In 2015, Dominic Ongwen became the first Ugandan Lord’s Resistance Army (LRA) suspect to be transferred to the ICC after surrendering to US troops in the Central African Republic. Ongwen was charged with 70 counts of war crimes and crimes against humanity.

In November 2019, the Congolese military leader Bosco Ntaganda was sentenced by the ICC to 30 years for war crimes and crimes against humanity in Ituri, Democratic Republic of the Congo.