All Eyes on The Hague: The ICC Prosecutor’s Move against Hamas and Israeli Leaders

On 20 May, Karim Khan, prosecutor of the International Criminal Court (ICC), announced that he had “reasonable grounds to believe” that senior leaders of Hamas and Israel have committed a range of war crimes and crimes against humanity since 7 October 2023, adding that he was seeking warrants for their arrest. Khan said he would submit an application to the Court’s pretrial chamber for warrants for Yahya Sinwar (head of Hamas in the Gaza Strip), Mohammed Diab Ibrahim al-Masri (aka Deif, commander of Hamas’s military wing) and Ismail Haniyeh (head of the Hamas political bureau). On the Israeli side, he said the application would name Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. The prosecutor did not allege that any of these leaders had committed crimes themselves, but rather that they were responsible under the international criminal law doctrines of co-perpetration and command responsibility.

Khan had previously warned that he might be seeking warrants, signalling to Israel through a series of visits and statements that he was particularly concerned that the restriction of humanitarian aid to Gaza violated international humanitarian law. Still, the announcement’s timing appears to have taken Israeli and U.S. officials by surprise. U.S. Secretary of State Antony Blinken labelled the warrant applications “shameful”, underscored the U.S. view that the court lacks “jurisdiction over this matter” and evinced dismay that Khan was seeking warrants even as his team had been planning a visit to Israel that both U.S. and Israeli officials appeared to hope might defer that decision. U.S. President Joe Biden expressed outrage, as did numerous members of Congress. In Israel, Netanyahu compared the prosecutor to Nazi-era German judges who upheld the genocidal laws of the Third Reich. In both the U.S. and Israel (neither of which is an ICC state party), political leaders expressed particular fury that the charges created, in their view, an equivalency between the Israeli government and Hamas, although the Court’s supporters noted that the allegations did no such thing, instead making the harms suffered by victims their focus. Punitive action by the U.S. Congress against the ICC is likely.

By contrast, the Court’s European state parties on the whole offered supportive statements, though there were outliers – notably Hungary, Austria and the Czech Republic – and some (like the UK and Germany) voiced the false equivalency grievance. Farther afield, Canada also made the false equivalency argument. South Africa, which brought a case before the International Court of Justice alleging that Israel is responsible for violations of the Genocide Convention as a result of its post-7 October military operations in Gaza, welcomed the decision by the ICC prosecutor. (See this useful thread by Alonso Gurmendi, which offers greater detail on state responses.)

Meanwhile, the prosecutor’s office has made clear that its work continues. Beyond following up on the warrant requests, it has suggested that the allegations it made public on 20 May could be supplemented at a later date. On the Israeli side the present allegations primarily relate to the decision to deprive Palestinians in Gaza of food and other essentials of civilian life, while on the Hamas side they cover a range of violent acts committed during the 7 October rampage, including hostage taking and murder, as well as crimes against the hostages since, including sexual violence. Other allegations concerning, for example, sexual violence on 7 October itself (in the case of Hamas) or the abuse of Palestinian detainees or targeting practices (in the case of Israel) could conceivably follow. The Rome Statute establishing the ICC also provides a legal framework for charging parties with genocide, though such charges require a specific intent to eliminate a group in whole or part that is widely considered very difficult to prove.

The prosecutor’s decision does not have any legal effect until the pre-trial chamber rules on his request. In order to approve the requested warrants, the pre-trial chamber must decide that there are reasonable grounds to believe that the named suspects bear criminal responsibility for the enumerated offences. The pre-trial chamber could issue arrest warrants for some of or all these individuals for some of or all the alleged crimes. The timeline for action by the pre-trial chamber is uncertain, though prior arrest warrants for heads of state suggest it may be a matter of weeks or months rather than years. The pre-trial chamber issued a warrant less than a month after application in the case of Russian President Vladimir Putin and eight months in the case of former Sudanese leader Omar al-Bashir (on charges of war crimes and crimes against humanity, though a second warrant for genocide was later issued following an appeal). Legal scholar Tom Dannenbaum has an excellent explainer of the nuts and bolts of the warrant applications.

If and when the pre-trial chamber issues arrest warrants, it will complicate the suspects’ lives. Although the near-term prospects for an actual trial before the ICC appear slim, should the suspects refuse to cooperate with the court, they would become fugitives from international justice, and the 124 state parties to the Rome Statute would be obligated to arrest them, should they alight upon these states’ territory, and subsequently to transfer them to the Hague. The effect would be to create a de facto travel ban covering much of the world. Although such travel restrictions would likely mean little to Sinwar and Deif (who are quite possibly hiding out in tunnels beneath Gaza) and might not significantly impede Haniyeh (who resides in Qatar, which is not party to the Rome Statute), they would be far more meaningful to Netanyahu and Gallant, who frequently go to states party to the Rome Statute. If parties to the Rome Statute honour their obligations, it would in effect render almost all of Europe, South America, much of Africa, Australia, Canada and Japan off limits to these officials. Travel in the Middle East and North Africa would be less constrained: Jordan, Tunisia and Palestine (which the Court interprets to comprise Gaza and the West Bank, including East Jerusalem) are the only regional states to have ratified the Rome Statute. 

Although there is at least one prominent instance from 2015 of an ICC fugitive (Bashir) managing to travel to a state party (South Africa) and evade arrest, recent history suggests that the warrants will have real teeth. In 2023, Putin, facing his own ICC arrest warrant for the abduction of Ukrainian children, had to skip a summit in South Africa – after Pretoria signalled that, notwithstanding the widely criticised Bashir precedent, a Putin visit would not be welcome. Although under the terms of the Rome Statute, the UN Security Council could pass a resolution to defer the case for a year, it would have to secure support from Russia (which would likely insist on similar relief from the warrants lodged against Putin). Other permanent members, which have traditionally been reluctant to exercise this power, may also have reasons not to support such an action. Outside the Security Council, only the Court itself has the power to quash the warrants. Under the principle of “complementarity”, Israel could cause the Court to stand down by mounting genuine accountability efforts regarding the specific offences alleged, though the prosecutor has warned that “sham” proceedings instituted to shield the accused would be unsuccessful. 

Another possible legal effect of this move by Khan is that it could galvanise accountability efforts independent of the ICC (and Israel). Two of Khan’s allegations against Netanyahu and Gallant – that they willfully caused great suffering or serious bodily injury and willfully brought about killings – are not only crimes under the Rome Statute but also grave breaches of the Fourth Geneva Convention. Every state in the world is party to the Geneva Conventions, and all have obligations to prosecute or extradite for prosecution those who perpetrate or order such grave breaches. In addition, the conduct underlying the other accusations against both Hamas leaders as well as Netanyahu and Gallant may also amount to offences subject to universal jurisdiction in other states (ie, the authority to prosecute perpetrators even if the crime was not committed on that state’s territory and did not involve one of its nationals). The allegations from the ICC prosecutor may prompt third states to more closely scrutinise the conduct of Israeli officials, serving military personnel and veterans entering their territories.

The International Criminal Court is a court of limited jurisdiction. It is empowered exclusively to adjudicate crimes committed on the territories or by the nationals of state parties, as well as situations referred to it by the UN Security Council. In many places where widespread atrocities have been widely alleged – such as Tigray in Ethiopia, Xinjiang in China, Syria and Iraq – the Court lacks jurisdiction because they lie within the territory of non-party states and the Security Council will not make a referral because one or more veto-wielding states stands in the way.  

Palestine has been laying the groundwork for the ICC to assert jurisdiction over Israeli actions for more than a decade. In 2012, it sought and received recognition from the UN General Assembly of status as a “non-member observer state”. This decision was sufficient for the Court to deem Palestine a state for purposes of accession to the Rome Statute and to permit it to become a state party in 2015. Although both Israel and the U.S. dispute that Palestine is a state, and therefore contend that the ICC lacks jurisdiction over Rome Statute crimes occurring on its territory, the Court’s pre-trial chamber disagrees. In a 2021 decision, it affirmed that Palestine is a state party, adding that the Court does in fact enjoy the territorial jurisdiction contested by Israel and the U.S. Khan has repeatedly stated that consistent with this 2021 ruling, he has jurisdiction over offences committed by Palestinian nationals as well as crimes committed on the territory of Palestine – which the court defines as Gaza and the West Bank, including East Jerusalem.

While Israel and the U.S. will likely keep saying the prosecutor is improperly asserting jurisdiction, the pre-trial chamber’s 2021 ruling fairly definitively obviates that legal argument and the gambit is losing steam in the political sphere as well. In mid-May, 143 member states voted for a resolution in the UN General Assembly which provided that “the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 [which limits membership to states] of the Charter of the United Nations and should therefore be admitted to membership in the United Nations”. Shortly after the prosecutor shared his intention to seek arrest warrants, three more states, Spain, Norway and Ireland, announced their recognition of Palestine as a state. 

The Israeli government shows no immediate sign of deviating from its course. Prime Minister Netanyahu vowed to continue Israel’s military campaign in Gaza and said he is more worried about the ICC’s status than his own. Israeli politicians across much of the spectrum, including Netanyahu’s rivals Benny Gantz and Yair Lapid, condemned the ICC decision. Many Israelis appear to see the prosecutor’s action as an attack on the country writ large, not just its leadership. This negative reaction likely emerges more from concern about what the ICC’s prosecutorial activity could mean for the Israeli military – and the prospect that soldiers could be placed under indictment – than Netanyahu personally. Israel’s top law enforcement officials, the attorney general and state attorney, said the claim has no foundation because the legal system in Israel examines all claims of violations of international law. But as the prosecutor made clear in articulating the limits of “complementarity” as a bar to the court’s involvement, the ICC does not look to the overall strength of a judicial system when deciding whether to exercise its jurisdiction; rather, it considers whether the system is genuinely willing and able to proceed with respect to specific individuals’ involvement with specific crimes. Khan also explicitly noted he would not defer to “sham” national processes intended to “shield suspects”.

Many Israelis appear to see the prosecutor’s action as an attack on the country writ large, not just its leadership.

Within the U.S. Congress the loudest voices, with the exception of a few members such as Senator Bernie Sanders, an independent from Vermont, and Representative Ilhan Omar, a Democrat from Minnesota, were quick to condemn the ICC prosecutor, with many calling for punitive measures. Even prior to Khan’s 20 May announcement, Representative Chip Roy, a Republican from Texas, had introduced broad sanctions legislation in the House in anticipation of such a move. The proposed measure would impose mandatory visa and financial sanctions on ICC personnel in response to any effort to “investigate, arrest, detain or prosecute” Israelis, as well as secondary sanctions on those who aid or assist such efforts, which could include officials of U.S.-allied governments who are parties to the Rome Statute. The chorus of voices calling for sanctions grew louder after the warrant applications.

But while criticism of the prosecutor’s move was widespread among members of Congress, it was not clear whether the condemnation would translate into backing for sanctions legislation – or whether the Biden administration would go along with it. Asked by U.S. senators about the administration’s position, Secretary of State Blinken indicated support for a non-specific, bipartisan response. Alternatively, the White House and Democratic allies might try to merely recodify existing restrictions on U.S. engagement with the Court or further curtail that interaction.

For the Biden administration to back sanctions would be seen by some of its supporters as deeply inconsistent with its purported support for a rules-based international order, not to mention with the way it has lifted up the Court’s work amid Russia’s war in Ukraine. Some now on Biden’s team were harshly critical when the Trump administration imposed visa and financial sanctions on certain ICC officers in response to the Court opening an investigation that would have covered U.S. operations in Afghanistan (and was widely understood to focus on the U.S. torture program under the George W. Bush administration). The Biden administration rescinded these sanctions in April 2021, and several months later – after the Taliban had retaken power in Afghanistan – Khan (newly in the role of prosecutor) made clear that he would set aside the prosecution of U.S. personnel and instead focus on cases against the Taliban and the local ISIS branch in Afghanistan. As former U.S. Ambassador for Global Criminal Justice Todd Buchwald has noted, that decision in effect reset the relationship between the U.S. and the Court; after Russia’s all-out invasion of Ukraine, the bond strengthened further, with even long-time ICC sceptics like Senator Lindsey Graham, a Republican from South Carolina, backing the prosecutor’s pursuit of charges against Putin.

Thus far, the administration has said it plans to keep assisting the Court in connection with its Russia cases. The desire to continue this work could have something of a mitigating effect on the punitive measures that it and Congress decide upon, but how much is hard to say. Congress should also consider the implications of sanctions for the many U.S. allies and partners that are parties to the Rome Statute, and thus have obligations under the treaty, including to assist with the arrest of suspects. Some of these states may also criminalise obstruction of the ICC’s work or threats against its staff. The imposition of sanctions could thus complicate U.S. bilateral relations with a range of states.

Meanwhile, U.S. politicians – many of whom are playing to constituents who strongly support Israel – can be expected to continue looking for opportunities to express their solidarity with Israel’s political leadership and their low regard for the prosecutor’s actions. In perhaps the most visible expression of this impulse, the speaker of the U.S. House of Representatives, Republican Congressman Mike Johnson, announced that Netanyahu had been invited to address Congress.

Perhaps the most positive potential impact of the prosecutor’s decision is that it signals the prospect of accountability for those who violate international humanitarian law. Critics of Israel’s conduct in the West Bank and Gaza argue that a building sense of impunity has encouraged a dangerous level of “hubris” among the country’s leaders that they hope will be punctured through this and similar actions. The Court’s supporters also hope that the spectre of further investigation and warrants may help deter the further commission of atrocity crimes; there is also a hope that the warrants might even create a sense of isolation (perhaps compounded by other legal setbacks at the International Court of Justice) that will make Netanyahu more amenable to compromise. Some may also hope that tarring Netanyahu and Gallant as fugitives may make the U.S. and other partners more tentative about providing them with arms and materiel, lest they be labelled as aiding and abetting international crimes – itself a potential basis for being tried in front of the Court.

At the same time, however, the prosecutor’s decision could well be making Israelis more defensive and sceptical of outside criticism. At a time when the two ministers in Netanyahu’s war cabinet have come out openly against his leadership and war strategy, the prosecutor’s announcement has diverted attention from Israel’s internal crisis and rallied Israeli leaders to defend the country’s reputation and project defiance. Netanyahu, who excels at turning a bad situation for the country into an opportunity for himself, will score a significant political win should he appear before Congress having secured a slot in part because of Khan’s application for warrants.

In the U.S., the move has rallied support for Israel, even among Democratic members of Congress who had previously criticised Netanyahu and the manner in which Israel is conducting its military campaign in Gaza. The full impact of the move will not be clear, however, until lawmakers and the executive branch have determined the metes and bounds of any punitive response. Because the prosecutor will continue to gather evidence for further allegations and possibly further warrants, the question of punitive measures is also unlikely to be resolved in the immediate future. 

The Court’s supporters will rightly argue that it could not, given its mission, look past the enormous evidence of atrocities in the Gaza conflict – especially given (legitimate) criticism it has received over the years that it focuses on less powerful and wealthy countries in the so-called Global South and looks away from issues that might implicate other parts of the world. They will also argue that judging the immediate impact of the prosecutor’s decisions would be a mistake; sometimes, it takes years for circumstances to change and for a leader to be brought to justice. Moreover, they will say, the Court needs to be given the time and space to build the universal system of accountability that its founders envisaged. In a world of eroding norms and growing impunity, that is certainly an attractive proposition. While the jury is out on whether the ICC prosecutor’s 20 May actions will bring realisation of that vision any closer, all actors in a position to help it do so should throw their weight behind the effort.