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Hamas and Israeli leaders could face international arrest warrants. This is what that means

(CNN) The prosecutor at the International Criminal Court (ICC) is seeking arrest warrants for top Hamas and Israeli figures on charges of war crimes and crimes against humanity following the October 7 attacks on Israel and the subsequent war in Gaza.

If approved by a panel of judges, the arrest warrants would be issued against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Arrest warrants are also being sought for three top Hamas officials: Gaza leader Yahya Sinwar, political leader Ismail Haniyah, and Mohammed Diab Ibrahim al-Masri, the leader of Hamas’s armed wing, known as Mohammed Deif.

Here’s what we know about the ICC cases and what they mean for Israel and Hamas.

What consequences would an arrest warrant have for the leaders of Netanyahu or Hamas?

The decision to issue arrest warrants does not immediately mean that the individual is guilty, but is the first stage in a process that could lead to a lengthy trial.

If the court finds sufficient evidence of crimes, it may summon the suspect to appear voluntarily. The court can also issue an arrest warrant and trusts Member States to carry out the arrest and transfer the suspect to the ICC.

When the suspect appears in court, a preliminary investigation takes place in which the court decides whether there is sufficient evidence to bring the case to trial. Then there is a trial before three ICC judges, in which the prosecutor must prove “beyond reasonable doubt” that the individual is guilty of the crimes.

Once a verdict is reached, the person charged can be sentenced to up to 30 years in prison. Under exceptional circumstances, a life sentence can also be imposed, the court said.

The ICC has so far issued arrest warrants for 42 people, 21 of whom have been detained with the help of member states.

“The immediate problem for Israeli officials under an ICC arrest warrant would be that the 124 member states of the ICC would be legally obliged to arrest such officials if they traveled to any of those 124 countries,” said Chile Eboe-Osuji , a former ICC president. , wrote this month in Foreign Policy magazine.

“That obligation should not be underestimated,” he said, adding that “just last year, Putin canceled his plans to attend the BRICS summit in South Africa in the apparent light of Pretoria’s obligation to arrest him.”

Of the Hamas leaders for whom arrest warrants are sought, two – Sinwar and Deif – are said to be in Gaza, while Haniyah remains in Qatar, which has not signed the Rome Statute.

What is the ICC and who can sue it?

Headquartered in The Hague in the Netherlands, the ICC was established in 2002 and is tasked with prosecuting individuals for crimes of genocide, crimes against humanity and war crimes.

Unlike the International Court of Justice (ICJ), the ICC is not a United Nations body and does not prosecute states.

Although the ICC is independent of the UN, it is endorsed by the UN General Assembly and maintains a cooperation agreement with the UN. When a case does not fall within the jurisdiction of the ICC, the UN Security Council can refer the case to the ICC, giving it jurisdiction.

The court may investigate alleged crimes committed in the territory, or by a national, of any state that has accepted the court’s jurisdiction by signing the Rome Statute, the treaty that established the ICC. Any Member State can ask the ICC Prosecutor to open an investigation.

The court has previously issued arrest warrants for high-ranking individuals, including former Sudanese President Omar al-Bashir, Saif Gadhafi, the son of the late Libyan leader Moammar Gadhafi, and most recently Russian President Vladimir Putin.

Signatory states are required to arrest those facing arrest warrants, but leaders have often tried to evade these arrest warrants, restricting their movement.

The ICC does not have its own enforcement mechanism and relies on support from countries for arrests.

Does the ICC have jurisdiction over Israeli citizens?

Israel’s actions in Gaza were referred to the ICC in November by five countries – South Africa, Bangladesh, Bolivia, Comoros and Djibouti – calling on the court to consider, among other things, possible crimes of genocide, crimes against humanity and investigate war crimes. the Palestinian territories, asking it to determine whether “one or more specific individuals should be charged.”

Israel does not recognize the jurisdiction of the ICC because it is not a signatory to the Rome Statute. But that does not mean that its citizens cannot be prosecuted in court.

The court was already investigating possible crimes committed by Israel since 2014 in Gaza, the occupied West Bank and occupied East Jerusalem. The investigation began in March 2021 and was referred to the court by the Palestinian Authority, which adopted the ICC’s mandate as the State of Palestine in 2015. The ICC then concluded that it has jurisdiction over the conflict and, “by majority vote, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.”

That investigation, said ICC Prosecutor Karim Khan, “is ongoing and extends to the escalation of hostilities and violence since the attacks that occurred on October 7, 2023.”

Statements from Netanyahu this month highlighted concerns about the ICC investigation. Issuing arrest warrants for Israeli officials would leave an “indelible stain” on the edifice of international law and justice, Netanyahu said, adding that the ICC was “established as a result of the Holocaust” and should not attempt to undermine the fundamental right of to “undermine” Israel. to self-defense.

The ICC’s action comes as the International Court of Justice (ICJ), another court in The Hague, hears a case brought by South Africa accusing Israel of committing genocide against Palestinians in the Gaza Strip. Israel recognizes the International Court of Justice.

The Israeli war in Gaza, following the Hamas attack on October 7, which killed 1,200 people in Israel and took more than 250 others hostage, has been going on for almost eight months.

According to Palestinian authorities, more than 35,000 people have been killed in the Israeli attack on Gaza. Parts of the territory have been reduced to rubble and more than half of the 2.3 million inhabitants have been internally displaced. Famine has broken out in parts of the strip.

Does the ICC have jurisdiction over Hamas?

Palestinian leaders signed the Rome Statute in 2015. As such, the ICC has jurisdiction over actors in Gaza and other Palestinian territories and, by extension, over actors in those areas, including Hamas.

ICC Prosecutor Khan confirmed this in October, saying that alleged crimes committed by Israel in Gaza, or by Hamas in Israel, fall under the court’s jurisdiction, Reuters reported.

This means the court can indict Hamas leaders for possible crimes committed against both Israelis and Palestinians in the Gaza Strip.

Shelly Aviv Yeini, head of the international law department of the Israeli Hostage and Missing Families Forum, said the ICC can hold Hamas responsible for crimes even if the State of Israel does not recognize the court’s authority.

“We are an NGO, a private entity,” Yeini previously told CNN, as the families of Gaza-held hostages gathered to file a complaint against Hamas with the ICC. “We can file a claim on behalf of the hostages even if the state (Israel) does not recognize its jurisdiction (the ICC).”

ICC Prosecutor Khan said Monday he is requesting the arrest warrants “based on evidence collected and investigated by my office,” and thanked the hostages’ families “for their courage in coming forward to reveal their accounts .”

According to Article 15 of the ICC Statue of Rome, any individual, group or organization can submit complaints about possible crimes to the court.

A member of Hamas’s political bureau, Muhammad Nazzal, told CNN in February that going to the ICC was “a mistake” that would delay negotiations over the return of the hostages.

“The shortest way to return their prisoners is to complete the ongoing negotiation process,” the Hamas member told CNN at the time.

How have Hamas, Israel and others responded to the ICC’s action?

Both Hamas and Israeli politicians have denounced the ICC’s move.

Hamas said it was an attempt “to equate victims with aggressors by issuing arrest warrants against a number of Palestinian resistance leaders without legal basis.” The militant group said the requests for arrest warrants for Netanyahu and Gallant had come “seven months too late,” citing the duration of Israel’s war in Gaza.

Israeli politicians from across the political spectrum condemned the decision. Foreign Minister Israel Katz called it an “outrageous decision” and an “unbridled frontal attack on the victims of October 7 and our 128 hostages in Gaza.”

Opposition leader Yair Lapid called it “a complete moral failure” and said Israel “cannot accept the outrageous comparison between Netanyahu and Sinwar.”

Right-wing National Security Minister Itamar Ben Gvir accused the ICC of anti-Semitism and called for an escalation of attacks on Hamas, while Finance Minister Bezalel Smotrich said: “We have never seen such a display of hypocrisy and hatred of Jews as that of the Hague Tribunal since Nazi propaganda.”

CNN has contacted the Prime Minister’s Office and the Ministry of Defense.

In the US, President Joe Biden denounced the ICC prosecutor’s move, calling it “outrageous.”

“Let me be clear: whatever this accuser may imply, there is no equality – none – between Israel and Hamas,” the president wrote. “We will always support Israel against threats to its security.”

Secretary of State Antony Blinken said the US “fundamentally rejects” the ICC prosecutor’s announcement and warned it could “jeopardize” efforts to broker a ceasefire and the release of hostages. .

“We reject the prosecutor’s equivalence of Israel with Hamas. It is a shame. Hamas is a ruthless terrorist organization that carried out the worst massacre of Jews since the Holocaust and continues to hold dozens of innocent people hostage, including Americans,” Blinken said in a statement.

He questioned “the legitimacy and credibility of this investigation” and said the US believed the ICC had “no jurisdiction over this issue.”

The US has not signed the Rome Statute.


Contributing: Jeremy Diamond, Benjamin Brown, Melanie Zanona, Aber Salman and Michael Schwartz, CNN