International prosecution of Israeli or Hamas leaders wouldn’t bring swift justice – and even bringing them to justice can be difficult

The International Criminal Court could issue arrest warrants for each Israeli and Hamas leaders because of this of Hamas' attacks on Israeli civilians on October 7, 2023, and Israel's subsequent invasion of Gaza, in accordance with Israeli officials and sources within the New York Times and other media outlets call “foreign officials”.

One of them is Israeli Prime Minister Benjamin Netanyahu People who could also be named in an arrest warrant Already this week, Israeli news publication Haaretz reported on April 28, 2024.

The ICC, an independent tribunal based in The Hague, Netherlands, prosecutes genocide, crimes against humanity and war crimes – the latter a legal term that features the attack on civilians and the commission of others War violationslike for instance Blocking humanitarian aid.

Karim Khan, the present ICC chief prosecutor, announced an investigation into Hamas in November 2023 and Israeli suspects after the Hamas attack in Israel, wherein 1,200 people were killed and lots of more kidnapped, and Israel's subsequent war in Gaza, which remains to be ongoing killed greater than 34,000 Palestinians.

The ICC criminal investigation follows the high-profile genocide case that South Africa filed a lawsuit against Israel in December 2023 at one other international tribunal called the International Court of Justice.

But these investigations and courts are different. While the ICC can conduct trials against those alleged to be answerable for criminal violations of international humanitarian law, the International Court of Justice is part of the United Nations that hears civil cases cannot charge individuals with crimes.

As a Human rights scholar and international courts, I feel it is necessary to emphasise that international criminal courts don’t have their very own enforcement powers. And which means they could never find a way to arrest or bring suspects to justice.

These international courts subsequently have a mixed record in holding senior political and military leaders accountable for his or her crimes. Only when political leaders fall from power is there a probability that their governments will arrest them and hand them over to international courts for prosecution.

Silhouettes of people can be seen walking through a street full of destroyed buildings and rubble.
Palestinians walk through the rubble of destroyed buildings in Nuseirat, Gaza, April 29, 2024.
AFP via Getty Images

The challenge for international courts

Take the instance of Russian President Vladimir Putin, who has been defying an ICC arrest warrant since March 2023 allegedly committed war crimes through the Ukraine war. As long as Putin stays in power, there may be virtually no prospect of his arrest.

International criminal courts corresponding to the ICC have a two-fold problem. First, these tribunals don’t have an actual international police force capable of creating arrests.

Second, governments implicated of their leaders' alleged crimes often try and obstruct international tribunals by failing to extradite suspects and attempting to attack the tribunals as biased.

The enforcement problem as my scholarship demonstratedcan allow the leaders of a strong country like Israel to evade arrest warrants from international courts – so long as the suspects remain within the country.

Israel is in this example not a celebration to the ICC, meaning it has never agreed to abide by its judgments or arrest warrants, nor otherwise accepts the court's jurisdiction. The United States and other countries, including Qatar, where some Hamas leaders live, are also not members of the ICC and haven’t any legal obligation to make arrests.

That means if the ICC issues an arrest warrant for Netanyahu, he could travel to Washington, DC, to fulfill with US leaders without fear of arrest. But he couldn't simply travel to European Union countries, all of that are members of the ICC and could be obliged to arrest Netanyahu.

It shouldn’t be clear what the precise alleged ICC charges might entail. But Netanyahu and other Israeli political and military leaders may now avoid traveling to ICC member states to avoid the danger of possible arrest if an arrest warrant is issued.

All of this may contribute to the well-being of Israel further international isolation and pressure over his wartime conduct.

The indictment of Hamas leaders implicated within the October 7 atrocities could also stigmatize Hamas internationally.

The USA, which at times spoke out strongly against the ICC, but in addition supported it court on an ad hoc basis, warned that issuing arrest warrants against Israeli leaders could jeopardize a possible ceasefire agreement between Israel and Hamas.

Milosevic's fall from power

Not all arrest warrants fail.

The trial against Serbian leader Slobodan Milosevic Mid-2000s shows how international tribunals could prosecute suspected war criminals after they lose power.

In 1993, while the war in Bosnia was still ongoing, the United Nations Security Council arrange a special court, the so-called International Criminal Tribunal for the Former Yugoslaviato unravel the crimes committed during regional wars.

This court has indicted Serbian nationalist leader Slobodan Milosevic for war crimes and crimes against humanity in 1999 through the ongoing Kosovo war. Milosevic's alleged crimes in Kosovo included a large ethnic cleansing campaign against Kosovo Albanians, the most important ethnic group there. Milosevic was later re-indicted for alleged crimes in Bosnia and Croatia.

But Milosevic was still in power when the fees were made, and his government protected him from arrest. Milosevic lost a presidential election in late September 2000 and after widespread protests resigned.

The US promised the brand new democratic government in Serbia significant economic aid to hurry up post-war reconstruction. This contributed to the Serbian government doing this Arrest Milosevic after which transfer it to the International court in June 2001.

People hold speakers and stand in front of a black and white photo of a man looking very serious.
Relatives and supporters of hostages held by Palestinian militants in Gaza chant for his or her release during an indication April 27, 2024.
Jack Guez/AFP via Getty Images

A possible playbook for Israeli and Hamas leaders

Milosevic's trial was launched in February 2002but he died in prison in 2006, near the tip of his trial.

His trial still shows that international courts can, in certain circumstances, overcome their lack of enforcement powers and produce high-profile suspects to justice. International political pressure and incentives often play a vital role.

As long as political and military leaders facing arrest remain in power, it is probably going that no amount of political pressure or guarantees will persuade Israel, Qatar or other countries to cooperate with a global court and extradite any leaders in the event that they do in order that they can be charged.

And history also shows that even when Hamas leaders are overthrown or Israeli leaders lose elections, there isn’t any guarantee that potential suspects will ever be tried before the ICC.

There is widespread public opposition in Israel to the ICC, which Netanyahu has condemned prior to now due to its “pure anti-Semitism“, will probably proceed like this. Furthermore, it’s unlikely, not less than within the short term, that the US will exert the identical pressure on its close ally Israel because it successfully exerted on Serbia after Milosevic's fall.

Kahn didn’t comment on reports of possible arrest warrants. Still, Israeli officials have gone on the offensive in an apparent try and enlist American support to forestall ICC motion.

This story has been updated from an article originally published on June 22, 2022.

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