ICC arrest warrant requests: what next?

The Hague, Netherlands

The prosecutor of the International Criminal Court has taken the landmark step of requesting arrest warrants for top Israeli and Hamas leaders over the Gaza war and the October 7 attack.

But does this mean any one of those accused of war crimes and crimes against humanity are really ever likely to stand trial in The Hague?

– What happens next? –

Prosecutor Karim Khan has laid out the charges — seven against Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, eight against Yahya Sinwar, Hamas leader in Gaza; Ismail Haniyeh, the group’s political leader; and Hamas military strategist Mohammed Deif.

The application now goes to a pre-trial panel of three judges who will decide whether the evidence meets the standard required to issue formal warrants.

There is no set time for this panel to make a decision but it usually takes at least one month and could take longer given the sensitivity of this case.

Iva Vukusic, assistant professor in international history at Utrecht University, noted that the bar applied was “reasonable grounds”, which she said was “quite low.”

“I absolutely expect the prosecutor will clear this hurdle. They are not silly,” she told AFP.

“It’s sure they have made their case bullet-proof because if not it would be a huge embarrassment for the Office Of The Prosecutor.”

– How are warrants enforced? –

The court has no police of its own to enforce its warrants, and relies entirely on ICC states playing ball.

Any of the 124 ICC member states are technically obliged to carry out the arrest warrants if those subject to them travel there.

This could make travel tricky for Netanyahu and Gallant, although Israel’s main ally, the United States, is not a member of the ICC so would not be obliged to arrest them.

The whereabouts of Sinwar and Deif are unknown but the elusive men are unlikely to be travelling abroad. Haniyeh lives in exile and splits his time between Turkey and Qatar, neither of which are ICC members.

Countries have not always complied with arrest warrants in any case.

Former Sudanese leader Omar al-Bashir managed to visit a number of ICC member states including South Africa and Jordan despite being subject to an ICC warrant.

Russian President Vladimir Putin, also subject to an ICC arrest warrant, has travelled abroad, notably to Kyrgyzstan, Saudi Arabia and the United Arab Emirates — not ICC members.

However, Putin did skip a meeting of the BRICS (Brazil, Russia, India, China, South Africa) in South Africa, which would have been expected to carry out the warrant.

Vukusic said it would be especially difficult if either of the Israeli officials travelled to a European Union country “because they are obliged to arrest them.”

– Have top-level suspects faced justice? –

History has seen several senior figures who have ended up in the dock on war crimes charges against all odds.

In 2012, a special court convicted former Liberian warlord-turned-president Charles Taylor of war crimes and crimes against humanity — who had Khan as defence lawyer.

Former Serbian president Slobodan Milosevic died in his cell in The Hague in 2006 while on trial for genocide at the Yugoslav war crimes tribunal.

Former Bosnian Serb leader Radovan Karadzic was finally captured in 2008 and convicted of genocide by the tribunal, and his military leader Ratko Mladic was arrested in 2011 and sentenced to life imprisonment.

“Is there an immediate prospect of a trial, no,” said Vukusic. “But the process of justice is long and things that are not possible now may well be possible in the future.”

Such an arrest warrant, if confirmed, would be a “stain” on those accused, she added.

“These kinds of warrants don’t go away. These people will have to look behind their backs for the rest of their lives.”

– Any other options? –

The ICC cannot try suspects in absentia but it can decide to simply press ahead with the case.

An example is the case of Joseph Kony — the leader of the Lord’s Resistance Army, who launched a bloody rebellion in Uganda — who remains at large.

In March, the ICC said it would hold hearings in October to confirm the charges against Kony, 62, who is suspected of 36 counts of war crimes and crimes against humanity.

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