What would a Netanyahu arrest warrant mean and could Britain detain him?
- Oops!Something went wrong.Please try again later.
- Oops!Something went wrong.Please try again later.
- Oops!Something went wrong.Please try again later.
For months, Israeli media have reported that Benjamin Netanyahu, Israel’s prime minister, was becoming increasingly anxious about the prospect of the International Criminal Court (ICC) seeking a warrant for his arrest over alleged war crimes.
He issued several public statements warning of the chaos such a move would unleash.
On Monday, the ICC went public - sending shockwaves around the world.
What happened?
Karim Khan, the British chief prosecutor at the ICC, has submitted applications to the court’s pre-trial chamber seeking arrest warrants for three Hamas and two Israeli leaders in connection with alleged war crimes and crimes against humanity committed on Oct 7 and during the subsequent war in Gaza.
Who are the suspects and what are the charges?
Mr Khan has requested warrants for the arrest of Yahya Sinwar, Hamas’ leader in Gaza, as well as Ismail Haniyeh, the head of Hamas’ political bureau and Mohammed al-Masri, commander of Hamas’ military wing. Prosecutors say they have ample evidence of the crimes including extermination (mass murder), rape and torture.
Mr Khan has also requested warrants for the arrest of Mr Netanyahu and Yoav Gallant, the Israeli defence minister. The allegations against them include the crimes of extermination or murder, directing attacks on civilians and starvation.
The last charge is particularly significant because the war crime of starvation has not been prosecuted since it was outlawed by the Rome Statute of the International Criminal Court in 1998. After a 2019 amendment to the Statute, however, the ICC now has the power to prosecute the war crime of starvation in any conflict situation.
Why the controversy?
Israel - and the United States - have condemned the move on the grounds that it draws a false equivalence between a sovereign state defending itself (Israel), and a murderous terrorist group that perpetrated the worst massacre of Jews since the Holocaust.
But the ICC’s prosecutors do not see it that way. As far as they are concerned, there is ample evidence that such war crimes were committed and that the named individuals may be responsible. Israel’s right to prosecute against a war with Hamas does not absolve them of liability before the law.
What happens now?
The court’s three-judge pre-trial chamber must now rule on whether or not to grant an arrest warrant.
David Bosco, a professor at Indiana university, noted that the judges do not simply rubber stamp any application prosecutors make. The request for an arrest warrant against Omar Bashir, the former president of Sudan, was initially rejected for example. They may refuse to issue warrants on some or all of the charges sought by prosecutors therefore.
That said, judges must only be satisfied that there are reasonable grounds to believe that such crimes took place - a much lower threshold than that of “beyond all reasonable doubt”, which would be required for conviction at trial.
When prosecutors applied for an arrest warrant for Vladimir Putin over alleged crimes committed in Ukraine, no announcement was made until the warrant had been issued.
The reason for publicly announcing the application for a warrant in this instance remains unclear. Catriona Murdoch, a British barrister assisting the Ukrainian prosecutor general’s office with war crimes cases, suspects the intention may be to incentivise Israel to ease the humanitarian situation in Gaza and allow the flow of more aid.
The evidence
In any crime, international or domestic, proving intent is the tricky bit, says Ms Murdoch, who is assisting Ukrainian prosecutors to build a case against Russian commanders in Ukraine for using starvation as a weapon of war.
Part of the challenge in Ukraine is that Russian officials and commanders - like many war crime suspects - generally avoided self-incriminating public remarks that would demonstrate they had a plan to use starvation as part of their military strategy. This means the case largely relies on demonstrating intent from their actions.
The Israeli defence team’s problem is that their clients - especially Mr Gallant - made repeated public statements about imposing a siege that seemed to demonstrate such intent. That is quite unusual. In a way, said Ms Murdoch, “It’s a prosecutor’s dream.”
Would Netanyahu be detained in the UK?
An arrest warrant issued by the ICC obliges all 124 members of the Rome Statute to arrest the suspect named if an opportunity presents itself. The individual would then be transferred to the ICC’s purpose-built detention centre in the Hague. Bail is not unheard of, but unlikely except on health grounds.
There is not much wriggle room, and it would put some of Israel’s allies, including the United Kingdom, in a very awkward position. Should Mr Netanyahu or Mr Gallant ever set foot on British territory, Scotland Yard would be obliged to make an arrest. Failure to do so would undermine the court, which the UK helped set up and championed.
Other countries have already faced such headaches. After the ICC issued a warrant for Putin’s arrest in 2023, he had to cancel a trip to South Africa to avoid embarrassing his hosts.
But the ICC is not part of the United Nations, and the United States, India, Turkey, and China, to name a few, are not members. So its reach is not quite as large as sometimes portrayed. And in practice, noted Ms Murdoch, governments have often ignored politically inconvenient warrants.
Does the court have jurisdiction?
Israel says no: after all, it is not a member of the Rome Statute and does not recognise a Palestinian state. The ICC is meant to be able to prosecute any crime committed by citizens of or on the territory of any member of the Rome Statute.
Israel may also argue that the ICC is a court of last resort, and since Israel has a functioning independent judiciary, it has no grounds to open prosecution (for obvious reasons that line of argument would not be open to Hamas).
The ICC disagrees: Palestinian leaders signed the Rome Statute in 2015, meaning it has jurisdiction over Gaza and the West Bank. That was confirmed in 2021, when the pre-trial chamber decided the court “could exercise its criminal jurisdiction in the Situation and, by majority, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem”.
Mr Khan has said he would much prefer Israeli courts to deal with this case - but that Israel’s track record of failing to adequately prosecute crimes committed in the occupied territories makes that unlikely.
