No, the ICC has not issued arrest warrants for Israel or Hamas leaders

The prosecutor for the International Criminal Court has formally accused leaders of Hamas and Israel – including Prime Minister Benjamin Netanyahu – of war crimes.

Leaders of Hamas and Israel both condemned the prosecutor’s decision, each arguing only the other was guilty of crimes against humanity.

Several posts online claimed the ICC had gone so far as to issue arrest warrants for the five men.

THE QUESTION

Has the ICC issued arrest warrants for leaders of Hamas and Israel?

THE SOURCES

• International Criminal Court
• Rome Statute
• U.S. State Department
• Council on Foreign Relations

THE ANSWER

No, the ICC has not issued arrest warrants for leaders of Hamas or Israel. The prosecutor has applied for arrest warrants but a judge has not yet granted them.

WHAT WE FOUND

On May 20, International Criminal Court prosecutor Karim A.A. Khan announced he was applying for arrest warrants for Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh, along with Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant.

Khan said the three Hamas leaders “bear criminal responsibility for… war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine” and that the Israeli leaders “bear criminal responsibility for… war crimes and crimes against humanity committed on the territory of the State of Palestine.”

But the warrants have not yet been granted by a judge.

Critics including the U.S. State Department have argued the prosecutor has not given national governments enough time to conduct their own investigations, and therefore the warrants should not be granted.

In other recent cases, judges have granted warrants a few weeks after the prosecutor requested them, so it’s possible they could be issued soon.

But even if warrants are issued, it’s unlikely anyone would actually get arrested because of the structure of the ICC and its limited enforcement ability.

How the ICC works

The International Criminal Court was created in 2002 by a treaty called the Rome Statute. The court was made to prosecute people for war crimes and crimes against humanity, but only in cases where national justice systems can’t or won’t. As such, it’s often called the “court of last resort.”

The ICC has 124 member states, but several large nations are not part of the ICC, including the United States, Russia, and China.

Israel is also not an ICC member, nor is Qatar, where one of the three accused Hamas leaders is believed to be living. But Palestine is a member state. As such, the ICC has argued it has jurisdiction if the crimes in question were committed in Palestine or by Palestinians.

The ICC doesn’t have a police force, so when it issues warrants, it relies on the law enforcement of member states to arrest suspects and send them to ICC headquarters in The Hague, Netherlands for trial.

The Rome Statute says member states are obligated to make those arrests, but historically that hasn’t always happened.

For instance, South Africa once declined to arrest a former Sudanese president wanted by the ICC, when he traveled to that country.

Still, the threat of arrest can have real-world consequences. Last year the court issued a warrant for Vladimir Putin for war crimes in Ukraine, which caused him to skip a summit held in South Africa.

This means if the warrants are granted, Netanyahu would only risk arrest if he traveled to ICC member states and those states agreed to use their law enforcement to carry out the warrant.

ICC defendants

Of the few dozen people for whom the ICC has ever issued arrest warrants, only ten were actually arrested, tried, convicted, and sentenced. All ten were African, which has caused some critics to accuse the ICC of regional bias.

Only two are currently in prison, with the other eight having completed their sentences. Before conviction, defendants are held at a detention facility in The Hague, but once sentenced they are sent to prisons in various member states.

Bosco Ntaganda, convicted of war crimes in the Democratic Republic of the Congo, is serving a 30 year sentence in Belgium.

Dominic Ongwen, convicted of war crimes in Uganda while part of Joseph Kony’s Lord’s Resistance Army, is serving a 25 year sentence in Norway.

Many people wanted by the ICC are never arrested and remain fugitives for decades.

ICC vs. ICJ

The International Criminal Court is different from the International Court of Justice, which has also had a recent high profile case involving Israel.

Whereas the ICC prosecutes individuals for crimes, the ICJ mediates disputes between nations. Unlike the ICC, which was created independently by the Rome Statute, the ICJ is a part of the United Nations.

In January, South Africa accused Israel of genocide in Gaza, and the court ordered Israel to take greater care not to kill civilians, though it stopped short of ordering a ceasefire.

But the ICJ has essentially no enforcement authority, only able to refer cases to the UN Security Council, where any one of the permanent members (the United States, Russia, China, France, and the United Kingdom) can veto proposed actions.