By Lara Kajs
Thinking Out Loud
This article analyzes the International Criminal Court’s request for arrest warrants related to the Israel–Hamas war, examining the legal basis for the charges, questions of jurisdiction, and the broader implications for international justice and accountability.
The International Criminal Court (ICC) is seeking arrest warrants in connection with alleged war crimes and crimes against humanity committed during the October 7, 2023, attacks in Israel and the subsequent war in Gaza.
The Office of the Prosecutor (OTP) has requested warrants for senior leaders from both Hamas and the Israeli government, signaling a rare effort to apply international criminal law across all parties to an active conflict.
The Indictments
The OTP has named three senior Hamas officials: Yahya Sinwar, head of Hamas in Gaza; Mohammed Diab Ibrahim al-Masri (also known as Deif), commander of the group’s military wing, the Al-Qassam Brigades; and Ismail Haniyeh, head of Hamas’s political bureau.
According to the Prosecutor, these individuals bear criminal responsibility for war crimes and crimes against humanity committed in Israel and the State of Palestine beginning on 7 October 2023. Alleged crimes include murder, extermination, hostage-taking, rape, and other forms of sexual violence, torture, and other inhumane acts.
The OTP has also requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. The Prosecutor alleges that both officials are responsible for crimes committed in Gaza from 8 October 2023 onward.
These allegations include the use of starvation of civilians as a method of warfare, intentionally directing attacks against a civilian population, persecution, and other inhumane acts. The Prosecutor has characterized the situation as involving both an international armed conflict between Israel and Palestine and a non-international armed conflict between Israel and Hamas, operating concurrently.
Legal and Political Opposition
The ICC’s actions have generated significant political opposition, particularly from the United States.
In 2023, the Court issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova in connection with the war in Ukraine. At that time, U.S. officials supported accountability efforts and emphasized the importance of enforcing international humanitarian law.
The response to the ICC’s actions in the Gaza context has been markedly different, raising questions about the consistency of support for international legal institutions.
Critics have argued that seeking warrants for Israeli officials creates a false equivalence between Israel’s right to self-defense and the actions of Hamas. However, the ICC’s mandate is not to equate parties, but to assess individual criminal responsibility under international law.
International humanitarian law applies to all parties in a conflict, regardless of the cause or justification for war.
Concerns have also been raised regarding reported efforts by U.S. lawmakers to pressure the Court. Public statements suggesting potential sanctions or restrictions targeting ICC officials have prompted debate about interference with judicial independence.
Under Article 70 of the Rome Statute, acts that impede, intimidate, or retaliate against Court officials in the performance of their duties may constitute offenses against the administration of justice.
The credibility of the ICC depends on its ability to operate independently, free from political coercion.
The ICC’s mandate is not to equate parties, but to assess individual criminal responsibility under international law.”
Jurisdiction and Enforcement
If the Pre-Trial Chamber approves the arrest warrants, those named would face significant legal and diplomatic consequences.
Although Israel and the United States are not parties to the Rome Statute, the ICC asserts jurisdiction over crimes committed on the territory of Palestine, which acceded to the Court in 2015. This provides a legal basis for the Court’s involvement in Gaza and the West Bank.
Any individual subject to an ICC arrest warrant may be detained if they travel to one of the Court’s 120+ member states, many of which are in Europe. While enforcement remains a persistent challenge, such warrants can substantially limit international mobility and diplomatic engagement.
The cases would place Israeli officials in a similar legal position to other individuals currently subject to ICC warrants, including Russia’s president.
Parallel Proceedings at the ICJ
At the same time, proceedings at the International Court of Justice (ICJ) are addressing state responsibility.
In January 2024, the ICJ found that it was “plausible” that acts falling under the Genocide Convention had occurred in Gaza and ordered Israel to take measures to prevent further violations. While the Court did not order a ceasefire at that stage, it affirmed the applicability of international legal obligations.
The ICC and ICJ serve distinct but complementary roles: the ICC prosecutes individuals for criminal responsibility, while the ICJ adjudicates disputes between states.
Together, these proceedings underscore the increasing legal scrutiny surrounding the conduct of the war.
The Role of International Justice
The ICC’s request for arrest warrants reflects a broader principle at the core of international criminal law: no individual is above the law, regardless of position or political alignment.
Whether the warrants are ultimately issued—and enforced—remains uncertain. What is clear, however, is that the Court’s actions represent a significant test of the international community’s commitment to accountability.
As legal processes move forward, the outcome will have implications not only for those directly involved but for the future credibility of international justice institutions.
Photo Credit: “Gesprek met ICC-hoofdaanklager Karim Khan 03” by Ministerie van Buitenlandse Zaken. Licensed under CC BY-SA 2.0
Published 23 May 2024
About Thinking Out Loud
Thinking Out Loud is a commentary series by Lara Kajs examining international law, humanitarian crises, and the prevention of mass atrocities. Drawing on field experience in conflict and displacement settings, the column explores the legal and policy challenges that shape contemporary conflicts
Lara Kajs is the founder and executive director of The Genocide Report, a Washington, DC-based educational nonprofit focused on atrocity prevention and international law. She is the author of several field-based books on conflict, displacement, humanitarian crises, and international humanitarian law, drawing on extensive research and field experience in Yemen, Syria, and Afghanistan. Her writing and public speaking focus on atrocity crimes, forced displacement, the protection of civilians, and the legal frameworks governing armed conflict.