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The ICC could issue warrants for Israeli and Hamas leaders. How does the court work?

The leaders of Israel and the Palestinian militant group Hamas may soon be the subjects of international arrest warrants over allegations they are responsible for war crimes and crimes against humanity.

International Criminal Court prosecutor seeks arrest warrants for Israeli, Hamas leaders

An exterior view of three connected buildings with a blue sign in front reading "International Criminal Court."

Leaders of Israel and the Palestinian militant group Hamas may soon be the subjects of international arrest warrants over allegations they are responsible for war crimes and crimes against humanity.

On Monday, the top prosecutor for International Criminal Court (ICC), Karim Khan, sought warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, accusing them of multiple offences committed since Israel declared war against Hamas in response to the Oct. 7 militant attacks.

Khan also applied for warrants for Hamas leader Yahya Sinwar, Mohammed Diab Ibrahim al-Masri (also known as Mohammed Deif), the commander-in-chief of Hamas's military wing, and Ismail Haniyeh, head of the Hamas political bureau, for crimes committed in Israel and Gaza.

You can read more details about the pursuit of these arrest warrants here.

The possibility of the ICC prosecuting any of these individuals follows a separate case before the International Court of Justice (ICJ) brought forward by South Africa accusing Israel of committing genocide in Gaza.

The ICC and the ICJ, both of which are based in The Hague, investigate serious crimes but serve different purposes and have different outcomes.

Here's what you need to know about the ICC and the ICJ — and how they operate.

WATCH | Karim Khan discusses the decision to apply for warrants for Israeli, Hamas leaders:

ICC prosecutor says no one 'above the law' after seeking warrants for Israeli and Hamas leaders

12 hours ago

Duration 3:21

In an interview with CNN's Christiane Amanpour, International Criminal Court (ICC) chief prosecutor Karim Khan discusses the decision to apply for warrants for Israeli and Hamas leaders, including Israeli Prime Minister Benjamin Netanyahu, in connection with the Oct. 7 attacks and the ongoing war in Gaza.

What is the ICC?

The ICC was born out of the Rome Statute, an international treaty adopted by the UN General Assembly in 1998, to investigate the "gravest crimes of concern to the international community."

It has a relationship with the United Nations but is independent of the world body.

The court has jurisdiction over four main crimes: genocide, crimes against humanity, war crimes and crimes of aggression. It only investigates crimes that were committed since July 1, 2002, the date the court entered into force.

The ICC will try individuals accused of any one of these crimes, when warranted, but not a state, government or political group.

If a case moves to trial, a panel of three judges will consider the evidence and issue a ruling. When there is a conviction, a suspect can face up to 30 years in prison, or life imprisonment in exceptional cases.

The court requires member states — the signatories to the Rome Statute — to cooperate with it. The court relies on member states to arrest and transfer suspects. (In some cases, a summons is issued and a suspect may appear voluntarily).

LISTEN | War crimes prosecutor says 'the international legal order is not dead':

As It Happens6:51ICC seeking arrest warrants for Israeli, Hamas leaders a sign of strong international legal order, lawyer says

Who is part of the ICC?

The ICC currently has 124 member nations, including Canada.

Israel is not one of them (neither is the U.S.), so even if the arrest warrants are issued, Netanyahu and Gallant do not face any immediate risk of prosecution. But the threat of arrest could make it difficult for the Israeli leaders to travel abroad.

Although Palestine is not a recognized state — it has non-member observer status at the UN — it accepted the jurisdiction of the Rome Statute and the ICC in 2014.

In theory, this would oblige the Palestinian Authority (PA) to ensure the three Hamas leaders face potential ICC charges. But practically, this would be unlikely, as the PA does not have authority over Gaza. Also Haniyeh is based in Qatar, which is not a signatory and has no obligation to extradite him if the ICC issues a warrant.

When could warrants be issued?

A pre-trial panel of three judges will determine if warrants will be issued, per Khan's requests. It can take, on average, two months for them to consider the evidence and determine if the proceedings can move forward, the ICC explains on its website.

What is the ICC's record for prosecutions?

According to the ICC website, out of the 46 arrest warrants the court has issued in its existence, 21 suspects have been held at its detention centre and brought before the court; 17 other suspects remain at large.

Among those considered fugitives are Russian President Vladimir Putin and other Russian officials indicted for alleged crimes committed in the context of the war in Ukraine.

There have been 31 cases before the court, though some of those cases had multiple suspects.

All of those cases involve defendants from African nations.

A prosecution of either the Hamas or Israeli officials would be the first to involve suspects from outside the African continent, though there have been warrants issued for suspects from other parts of the world, including Venezuela, Georgia and Myanmar.

ICC judges have convicted five people for crimes under its jurisdiction, as well as five others for crimes related to its proceedings. Four others have been acquitted following legal proceedings.

The court has dropped charges against seven suspects because of their deaths, including deceased Libyan dictator Moammar Gadhafi.

WATCH | What could happen next in pursuit of arrest warrants for Israeli, Hamas leaders:

ICC arrest warrants will bring to light 'mass atrocities,' says criminologist

9 hours ago

Duration 3:44

The chief prosecutor of the International Criminal Court (ICC) said Monday he is seeking arrest warrants for Israeli and Hamas leaders. According to Mark Kersten, assistant professor of criminology at the University of the Fraser Valley in B.C., warrants will be a 'game changer.' He says the situation in the Middle East has been 'starved of justice and accountability for many, many years.'

What is the ICJ?

The ICJ is the main judicial body of the United Nations, established in 1945 to settle disputes between states in accordance with international law. It's also referred to as the World Court.

Unlike the ICC, it does not try individuals and its rulings do not result in criminal convictions or prison sentences.

The court consists of 15 judges from different countries, elected by the UN General Assembly and UN Security Council for nine-year terms. The panel may be expanded to include representatives from each side of a case, as happened with South Africa's case against Israel.

A view of a palace with a light blue flag waving on a pole beside it.

The ICJ's decisions are legally binding and cannot be appealed, but the court does not have its own ability to enforce rulings.

Cases before the ICJ may take years to resolve, but the court does have the ability to issue emergency measures, as it did in January when it ordered Israel to take steps to prevent genocide in Gaza.

WATCH | How the ICJ reached its decision on emergency measures to prevent genocide in Gaza:

What ICC arrest warrants for Israeli, Hamas leaders mean

9 hours ago

Duration 2:29

As war continues to rage in Gaza, CBC's Briar Stewart takes a look at what could happen now that the chief prosecutor of the International Criminal Court said he is seeking arrest warrants for Israeli and Hamas leaders, including Israeli Prime Minister Benjamin Netanyahu, in connection with their actions during the last seven months of fighting.

What was the reaction to Monday's news?

Netanyahu called Khan's announcement a "disgrace" and an attack on the Israeli military and all of Israel.

"As prime minister of Israel, I reject with disgust the Hague prosecutor's comparison between democratic Israel and the mass murderers of Hamas," Netanyahu said. "No pressure and no decision in any international forum will prevent us from striking those who seek to destroy us."

Earlier Monday, Gallant said the military would expand its operations in the southern Gaza city of Rafah in its efforts to crush Hamas.

Hamas issued a statement denouncing the request to arrest its leaders and accused Khan of trying to "equate the victim with the executioner." Hamas said it has the right to resist Israeli occupation, including "armed resistance."

U.S. President Joe Biden issued a strongly worded statement denouncing Khan's announcement. "Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security," Biden said.

The Biden administration has opposed a full-fledged invasion of Rafah, however, because of fears for the civilian population.

ABOUT THE AUTHOR

Nick Logan

Senior Writer

Nick Logan is a senior writer with CBCNews.ca based in Vancouver. He has worked as a multi-platform reporter and producer for more than a decade, with a particular focus on international news. You can reach out to him at nick.logan@cbc.ca.

    With files from CBC News, The Associated Press and Reuters

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    Credit belongs to : www.cbc.ca

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