The International Criminal Court’s arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and his former defence minister Yoav Gallant carry significant legal and political weight.
They have immediate consequences related to the legal obligations of states that are party to the Rome Statute, the treaty that established the court.
All 124 state parties to the Rome Statute are now under an obligation to arrest Netanyahu and Gallant, as well as Hamas military chief Mohammed Deif, who was also issued a warrant despite Israel’s claim that he has been killed in Gaza.
A trial cannot commence in absentia and member states must hand the accused over to the court in The Hague.
But the court does not have enforcement powers. It relies on the cooperation of member states to arrest and surrender suspects.
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Signatories to the statute include the UK, France, Germany and Spain, and, in the Middle East, Jordan, Tunisia and Palestine.
However, other states, notably the US, China, India, and Russia, are not signatories. Most countries in the Middle East and North Africa, including Turkey and Saudi Arabia, also do not recognise the ICC.
It is likely that Netanyahu and Gallant, who is no longer defence minister, will restrict their travel, as Russian President Vladimir Putin did following the ICC arrest warrant against him.
A future Israeli government may also choose to hand them over to The Hague.
Moreover, states that are not members of the Rome Statute may choose to surrender the suspects to The Hague, bar them from entering their territories, or prosecute them under their domestic jurisdictions.
Triestino Marinello, an international human rights lawyer representing Palestinian victims at the ICC, said it is unlikely Netanyahu will be extradited by Israel.
“But this will have a strong impact on the possibility to act as prime minister because he won’t be able to travel to 125 states, which have a legal obligation, not a political discretion, to arrest him and extradite him,” Marinello told Middle East Eye.
According to Marinello, who described the warrants as “historic”, they will have an impact beyond that related to Netanyahu and Gallant.
The warrants may trigger domestic cases against other citizens of Israel, particularly dual nationals in European countries, because the court has found that crimes have been committed.
“Anyone else involved in the commission of the crimes may be brought to justice at a domestic level but also at an international level,” Marinello said.
Although the ICC has jurisdiction over the crime of genocide, the charges against Israeli leaders excluded the crime, currently being examined by the International Court of Justice in a case filed by South Africa against Israel in December.
The prosecutor, however, has previously acknowledged that other crimes and Israel’s ongoing bombing campaign are currently being actively investigated by the ICC.
The two Hague-based courts have different mandates.
The ICJ, the principal judicial organ of the UN, settles legal disputes between states and provides advisory opinions on legal questions submitted by UN organisations and related agencies.
The ICC, on the other hand, prosecutes individuals for four international crimes: genocide, war crimes, crimes against humanity, and the crime of aggression.