CC chief prosecutor wants to issue arrest warrants for ‘war crimes’; What happens next, is there precedent and why are IDF’s top figures off the hook? Let Ynetnews answer your questions
Karim Khan, the chief prosecutor of the International Criminal Court, announced on Monday that he has requested arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for committing ‘war crimes and crimes against humanity.’
What are the implications? What process will now be carried out? What are the chances of the request being approved? Are there similar precedents in the past? What additional consequences might this have for Israel? Ynetnews is here to answer your questions.
What is the significance of the prosecutor’s request for arrest warrants, and what process should take place now? This request marks an unprecedented low point in Israel’s international standing, as a respected institution like the ICC is seeking arrest warrants against the prime minister and defense minister. Israeli leaders have long believed they were untouchable, but that is no longer the case.
The request now moves to the pre-trial chamber judges handling the case related to the Palestinians. The procedure stipulates that the court reviews the requests from the Prosecutor’s Office and can request additional evidence if needed. This stage can take about a month, as seen in other cases.
For Gallant, this process might be quicker due to the strong evidence against him, particularly his past statements that allegedly indicate criminal intent to starve the residents of the Gaza Strip. On October 9, two days after the outbreak of the war, Gallant stated that a blockade should be imposed on the Gaza Strip. “There will be no electricity, no food, no fuel – everything is closed,” he said. “We are fighting human animals, and we are acting accordingly.”
Why only Gallant and not, for example, Foreign Minister Israel Katz, who made similar statements? The answer is simple: Unlike Foreign Minister Israel Katz, who was then the Minister of Energy, Gallant is part of the war management cabinet. Therefore, from the ICC Prosecutor’s perspective, Gallant is responsible, and a chain of command can be proven. In other words, he made the statements, and they were carried out on the ground.
What are the chances that the pre-trial chamber will approve the prosecutor’s request and issue arrest warrants? Currently, the assessment is that it is hard to believe the chamber won’t issue arrest warrants against Gallant due to his incriminating statements. Regarding Netanyahu, the chamber needs to link him to Gallant, and there seems to be a conflict of interest here. Since both are accused of the same offense, and there is a chance that one might implicate the other, it appears the court will not allow them to have joint representation.
Netanyahu is accused of being at the top of the pyramid, thus bearing ultimate responsibility for the actions carried out by Gallant, who is subordinate to him in the chain of command. The court attributes to Netanyahu participation in a criminal plan to starve a population. Hence, there is a conflict of interest, and the court is unlikely to allow both to be represented by the same lawyer.
Once arrest warrants are issued, does that mean Netanyahu and Gallant won’t be able to travel abroad for fear of being arrested? Absolutely yes, at least in the 123 countries that are signatories to the Rome Statute (apart from the Palestinians). For example, the United States is not one of these countries, but the UK, France and Canada are, along with many other countries in Europe and the West, as well as beyond. Essentially, what is expected is that no European country will be willing to invite Gallant and Netanyahu, since they would not want to deal with the issue of what to do with them when they arrive.
(Photo: Yonathan Zindel, Luis ACOSTA / AFP, אלעד מלכה)
Is it possible to cancel arrest warrants? There is an option to request the cancellation of an arrest warrant if it was issued improperly. However, given the nature of the case and the allegations, it is hard to believe they will be canceled. To cancel an arrest warrant, one must cooperate with the court – and Israel is unlikely to cooperate with the ICC.
Can international political pressure be applied to the court to prevent or cancel the arrest warrants? The answer is no, it’s too late. The situation has moved beyond the stage of political pressure, and it’s no longer possible to influence the prosecutor or apply pressure.
Who is supposed to legally represent Netanyahu and Gallant – will it be the State of Israel? Unlike the International Court of Justice in The Hague, in this case, the defendants must appoint a lawyer who meets the criteria and is on the court’s list of approved lawyers. Among other things, the lawyer must have at least 10 years of expertise in international criminal law and be fluent in English or French. Netanyahu and Gallant can theoretically bring their own lawyer – but the lawyer would need to be vetted by the court’s registry to ensure they meet the criteria. There are very few lawyers in Israel who specialize in this field.
How is it possible that the prosecutor equates Sinwar with Netanyahu and Gallant? The prosecutor is not equating the sides but is investigating them and noting that crimes were committed on both sides. There are two separate investigations and two lead investigators handling them, with no overlap between them.
Could this have additional legal ramifications for Israel? There is a concern of a dam-breaking effect. It could incite international organizations and NGOs to file lawsuits against Israel in foreign courts. This won’t stop here. The prosecutor himself said he is considering issuing further arrest warrants in two investigations: one concerning the sexual offenses committed by Hamas in Israel on October 7, meaning more arrest warrants against senior Hamas officials; and the other relating to the extensive bombings in Gaza that caused significant harm to civilians. Essentially, it appears the court is targeting the highest-ranking officials.
(Photo: AFP)
Are there precedents when foreign leaders received arrest warrants, appeared in court and were released on bail? In 2014, the ICC prosecutor requested arrest warrants against Kenyan President Uhuru Kenyatta, accusing him of planning and executing ethnic cleansing after the 2007 presidential elections. Kenyatta used a constitutional provision allowing him to temporarily step down, appeared before the court for a hearing, and denied the charges. Thus, he temporarily relinquished his powers to avoid setting a precedent of a sitting president standing trial in The Hague.
Both Kenyatta and his then-deputy William Ruto, now president of Kenya, appeared before the court on the advice of their then-lawyer Karim Khan, who is the current ICC prosecutor. The trial continued in their absence, and they continued to serve as president and vice president of Kenya.
Why didn’t the prosecutor request arrest warrants against those managing the fighting, like the IDF Chief of Staff or the Southern Command General? Does this mean he won’t issue warrants against them in the future? It’s hard to say, but it seems that, from the court’s perspective, both are executors, not decision-makers. The court is interested in who conceived the idea and who gave the orders, rather than who carried it out.
Why did the prosecutor submit a public request for arrest warrants rather than a confidential one that would only be revealed after the warrants were issued? The prosecutor concluded that a confidential request would lose control over the process, allowing the judges to issue a warrant first against Netanyahu and not against Sinwar, creating a severe crisis between the ICC and the Americans. Submitting a request against both sides demonstrates impartiality. What the court will do is another question – and it’s not Khan’s responsibility.
As reported by Ynetnews