ICC issues arrest warrants for Israel, Hamas leadership: what happens next?

Why have the warrants been issued?

The ICC can only investigate and prosecute if the national judicial system of the countries concerned are not, in the eyes of the Court, conducting genuine investigations or prosecutions for the same alleged crimes.

“The primary responsibility is for the national judicial systems,” Fadil Abdullah, the ICC spokesperson, told UN News. “However, if there are no genuine investigations or prosecutions, then the court has to investigate and to prosecute where the legal conditions are met. So that means that it's not enough to have a legal system, but there is a need to demonstrate that this legal system is active in relation to crimes or alleged crimes.”

The warrants, related to alleged war crimes stemming from the year-long Gaza conflict triggered by the Hamas-led attacks in Israel, indicate that the judges have found reasonable grounds to believe the suspects are responsible for crimes under ICC jurisdiction.

This is just the first step

At the pre-trial stage, for the defendants to challenge the admissibility of the proceedings. “It's possible either for the concerned state or for the concerned suspect to seek from the ICC to stop the proceedings against him or her,” says Mr. Abdullah, “but that has to be based on evidence that there are genuine serious prosecutions, at the national level, for the same alleged conduct.”

It is also important to note that the ICC does not conduct trials in absentia: the defendants must be physically present in order for the case to begin.

All defendants are presumed innocent until proven guilty beyond reasonable doubt before the ICC. Each defendant is entitled to public and impartial proceedings. If and when suspects appear, they are provided with a defence team if needed, and undergo a confirmation of charges hearing before the case can proceed to trial.

Once the defendants appear before the court, a “confirmation of charges” hearing takes place, at which the judges will decide, after having listened to the defence, whether the prosecutor evidence is still solid enough for the case to move to trial.

If they decide to go ahead, the defence and prosecution will call witnesses and present evidence. Legal representative of the victims also have the rights to present their observations in person.

The court then decides if the defendants are innocent or guilty, and what their sentence should be.

Finally, the defendants have the right to appeal to the ICC Appeals Chamber, made up of five judges, different from the three judges of the pretrial and the other three trial judges.

How significant are these warrants?

The answer to this question lies in the reason the court was set up in the first place. Created in 2002, the ICC is the world’s first permanent, treaty-based international criminal court to investigate and prosecute perpetrators of crimes against humanity, war crimes, genocide and the crime of aggression.

The warrants send a signal that the rule of law must be upheld, and provide a legal avenue for justice, which is crucial to breaking the cycle of violence and revenge.

Countries that recognize the Court are obliged to support the warrants

The court has no police to enforce its warrants and depends on its member States to implement its orders. This means that, if Mr. Netanyahu, Mr. Gallant or Mr. Deif (whom Israel claims to have killed, although this has not been confirmed by Hamas) visit one of the 124 countries that accept the Court’s jurisdiction, the authorities of the nation in question should arrest them and deliver them to a detention centre in the Netherlands, where the Court is based.

Why issue the warrants, if the defendants are unlikely to come to trial?

“The judges have decided, based on the evidence and on the rule of law as they have interpreted them, and we need to respect that,” declares Mr. Abdullah.

“It is important to let people believe that the law is there for them, and to believe that justice will be done, because if not, what choices are we leaving to them, other than continuing in the cycle of violence and revenge?”

About the ICC

The International Criminal Court (ICC) is not part of the United Nations but they have a cooperative and complementary relationship.

The ICC is an independent judicial body established by the Rome Statute, which was adopted in 1998 and came into force in 2002.

It was established to address serious international crimes and ensure accountability when national justice systems are unable or unwilling to act.