ICC warrant requests for Israeli and Hamas leaders: What happens now?

This week, International Criminal Court Prosecutor Karim Khan announced his office had requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three top Hamas officials, including leader Yahya Sinwar. The ICC alleged that each had perpetrated various forms of war crimes and crimes against humanity during the months-long war between Israel and Hamas in the Gaza Strip. "Those who do not comply with the law should not complain later when my Office takes action," Khan stressed in a statement accompanying his allegations. "That day has come."

Reaction to Khan's announcement was swift and predictably controversial, with both Israeli and Hamas leadership bristling at what they each deemed the implied equivalency between their respective conduct — a sentiment echoed by U.S. Secretary of State Antony Blinken, who also claimed the ICC has "no jurisdiction over this matter." Crucially, neither the United States nor Israel are signatories to the ICC's founding Rome Statute, which defines the international body's authority over member nations.

As the Gaza conflict continues to test the limits — and limitations — of international law, the very real prospect that the ICC could issue Khan's requested warrants could have much more immediate effects on Israel, Palestine, and beyond.

What did the commentators say?

The ICC "cannot try individuals in absentia," so if the warrants are issued, "custody of the accused is key," think tank Chatham House said. However, the ICC has "no means to enforce an arrest" and so its rules merely "oblige all 124 ICC signatory states to arrest and hand over any individual subject to an ICC arrest warrant if they set foot on their territory," Reuters said.

Khan's request is "historic in that it is the first time the [ICC's Office of the Prosecutor] has brought charges against a head of state who is supported by Western nations," said Gissou Nia, director of the Strategic Litigation Project at the Atlantic Council. If the warrants are issued, "tricky diplomatic questions may ensue" — particularly in Europe, home to some of the ICC's most fervently supportive nations, as well as "countries to which Netanyahu and Gallant are likely to travel in the future." Ultimately, then, the "more likely outcome will be severe restrictions on the ability of Netanyahu and Gallant to travel," which, in turn, "may further isolate Israel globally and accelerate the growing push for Netanyahu to leave office." A similar situation extends to Ismail Haniyeh, Hamas' political leader, who "will have to think harder about his regular trips to meet senior Arab leaders," and will likely spend most of his time in Qatar, which is not a Rome Statute signatory, BBC said.

Although Israel isn't a signatory to the ICC's Rome Statute, that "doesn’t mean its citizens cannot be prosecuted by the court," CNN said. A previous investigation into Israeli actions launched by the court in 2021 determined the "territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem." Palestinian Authority leaders signed the Rome Statute in early 2015, rendering the whole of their territory — including that currently controlled by Hamas — under ICC jurisdiction.

What next?

As of right now, no arrest warrants have been issued. Khan's request must be "approved by a panel of three judges — from Romania, Benin, and Mexico — at the ICC before they can be implemented," Time said. "It is not guaranteed they will agree to issue the warrants." While there is "no set time frame" for that panel to make its decision, the "chamber has previously acted with expediency to issue decisions granting arrest warrants within about a month," said Haydee Dijkstal, a senior fellow for the Strategic Litigation Project at the Atlantic Council.

Should warrants be issued, and arrests ensue, "it usually takes years" to conduct trials for the types of crimes alleged by the ICC, Chatham House said. Parties may need to "gather and preserve reliable evidence," which is "particularly challenging amid active armed conflict situations" and which "may require the consent of states to access territory."

Accused parties could, if charged, attempt to challenge the warrants by proving there is an "independent and impartial judicial process in place" within their respective nations that is prepared to "conduct the case instead of the ICC," Dijkstal said.