May 20, 2024 Karim Khanchief prosecutor of International Criminal Court (CPI), based in The Hague, Netherlands, asked the Preliminary Chamber of your court to have warrants issued arreston charges of war crimes and crimes against humanity (specifically “deliberately reducing Palestinian civilians to starvation”, “murder” and “extermination”), for the Israeli prime minister Benjamin Netanyahu, for the Israeli defense minister Yoav Gallant and for three leaders of Hamas: Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh. The International Criminal Court can in fact judge natural personsnot States, unlike the UN International Court of Justice, also based in The Hague. The arrest warrant will probably not be followed up because many countries, including Israel, will not recognize the ICC.
Warning: it is important not to confuse the two institutions. The action of the International Criminal Court, responsible for the arrest warrants against the leaders of Israel and Hamas and which had done the same with Putin in March 2023, is unrelated to the activity of the International Court of Justice, which is instead evaluating the accusation of genocide against Israel launched by South Africa in December 2023. The two decision-making processes, however, are unrelated. Let's delve deeper into the issue of arrest warrants and understand why they will most likely not be followed up, at least in the immediate future.
Because chances are nothing will happen
As already explained regarding the arrest warrant issued for Vladimir Putin, although the initiatives of the International Criminal Court have a strong media echo and a certain one political relevanceThe lack of recognition of the ICC by Israel and numerous world powers, such as the United States, Russia, China and India, greatly reduce its effective action. Count that more than half of the world's population does not recognize the jurisdiction of the Court. Added to this is the unclear and defined situation of recognition of the State of Palestine at the United Nations.
Finally, in concrete terms, states that are not members of the ICC are not required to extradite its citizens to be tried nor the Court has means of coercion to push these countries to give in to his demands. In short, between political interests, judicial gaps And action limitsthe leaders of Israel and Hamas are very unlikely to be arrested and tried by the International Criminal Court.
What is the International Criminal Court and what punishments can it impose
Let's start with some fixed points: Israel has not ratified it Rome Statute, the treaty that came into force in 2002 under which the International Criminal Court operates and is therefore not a member country of the ICC. Despite this, by Statute the Court can also apply its jurisdiction to non-signatory States if it has to judge a crime that occurred on the territory of a member state of the ICC and Palestine became a member country of the International Criminal Court in April 2015. However, the Palestine is not a state universally recognized by all other countries (including Israel) as fully legitimate within the UN. It is therefore clear that the issue is complicated from the start due to these discrepancies in international law.
Having said that, according to lArticle 5 of the Rome Statutethe International Criminal Court can sentence the accused to following penalties:
- Imprisonment up to a maximum of 30 years
- Life imprisonmentwhen justified by the extreme seriousness of the crime and the individual circumstances of the convicted person
In addition to prison, the accused can be sentenced to:
- A sanction pecuniary
- There confiscation of assets or earnings derived from the action object of the crime
If the accused person is tried, found guilty and convicted, the sentence imposed is binding and must be observed. It is important to underline that for the crimes of the International Criminal Court there is no immunity: no distinction based on the position or qualification of the accused person can, in fact, be applied. Therefore even a head of state or government can be prosecuted, without enjoying any type of immunity. Furthermore there is no prescriptionthat is, even after a certain period of time, the right in question or the proceeding does not expire or is cancelled.
The prosecution proceedings
Once the prosecution proceedingsthe prosecutor of the International Criminal Court – in this case Karim Khan – can collect all the evidence and information that he deems necessary, involving States, non-governmental organizations, United Nations bodies and everything that is important and appropriate to him, both in written and oral form. Following this the Prosecutor asks the Preliminary Chamber Of examine the request and to be able continue with the investigation. If the Pre-Trial Chamber believes that there are elements to proceed and that the crime can fall within the authority of the Court authorizes the prosecutor to proceed with the subsequent actions provided for by the Statute. Even if the Pre-Trial Chamber issues a negative opinion, the prosecutor can resubmit the request with new elements or evidence.
Examples of leaders with a request for an arrest warrant
In contemporary history and particularly in recent years, they are various heads of state or government that they were accused by the International Criminal Court For war crimes or crimes against humanity. At present, however, only a few people have been definitively convicted and have actually served a sentence.
In the 2008 the president of Sudan Omar al Bashir was accused of genocide and crimes against humanity committed during the war in Darfur In the 2003.
Likewise Jean-Pierre Bembaformer vice president in the transitional government of Congo from 2003 to 2006, was accused of murder and rape during the atrocities committed between 2002 and 2003 in Central African Republic. In the 2016 the ICC deemed it so guilty and sentenced him at first instance to 18 years of prison. It was about the first time in which a member of the government was convicted at first instance by the International Criminal Court for rape and sexual violence used as war crimes. However, Jean-Pierre Bemba was later acquitted in 2018.
In the 2011 the ICC indicted the former Libyan leader Gaddafi of crimes against humanity. Just that year, however, Gaddafi was killed after being captured by the rebel militias of the National Transitional Council.
Regarding the conflict Russia-Ukrainethe International Criminal Court has issued an arrest warrant for war crimes And deportation of children against the Russian President Vladimir Putin and with him also against the commissioner for children's rights in the Kremlin Maria Alekseyevna Lvova-Belova and other members of the Russian government.
