What is the ICC?

The International Criminal Court (ICC) was in the global spotlight Monday after its prosecutor requested arrest warrants for three Hamas leaders, along with Israeli Prime Minister Benjamin Netanyahu and his defense minister, claiming the court has evidence of war crimes committed in Israel and Hamas’s ongoing war.

The arrest warrants are for Yahya Sinwar, the head of the Hamas movement in Gaza; Ismail Haniyeh, the top political leader for Hamas; and Mohammed Diab Ibrahim Al-Masri, the commander of the Hamas military wing. ICC Prosecutor Karim Khan said all “bear criminal responsibility” for war crimes against Israel, including sexual violence, kidnappings and extermination.

Netanyahu and Israeli Defense Minister Yoav Gallant, Khan said, are criminally responsible for starvation as a method of war, the intentional targeting of civilians, torture and extermination.

History of the ICC

The ICC was established in 2002 following a years-long push for an international court as a last resort to persecute individuals for the most serious incidents, including human rights violations, war crimes, genocide and crimes of aggression.

The idea behind the ICC dates to the post-World War I era and was further fueled in the 1990s after human rights violations in the conflicts in Yugoslavia and Rwanda.

Human rights group began the push for such a body toward the late 1990s, modeling the idea after the Nuremberg trials and ad hoc tribunals for the Yugoslavia conflicts of the 1990s and the Rwandan genocide.

Over six planning sessions at the United Nations headquarters, hundreds of nongovernmental organizations helped draft the International Criminal Court statute. The court was established in July 1998, after 120 states adopted what’s now known as the Rome Statute, which went into effect in 2002 after it was ratified by more than 60 states.

The ICC, seated in The Hague, Netherlands, is independent of the United Nations, unlike the International Court of Justice, which handles disputes between nations.

How the ICC works

Under the Rome Statue, the ICC is not supposed to supersede national courts and is only permitted to intervene when a nation is unable or unwilling to investigate and prosecute. The ICC, accordingly, has jurisdiction over four main crimes: genocide, crimes against humanity, war crimes and crimes of aggression.  

States that are a party of the court can request investigations, and states not a party of the court that have had a crime committed in their territory are able to request an investigation if they accept the court’s jurisdiction. The United Nations Security Council is also able to request an investigation, regardless of whether the state in question is a party to the court.

As with Monday’s announcement, the ICC’s Office of the Prosecutor can also launch investigations with reliable information about a crime, but that requires permission from the pretrial chamber judges to do so.

A panel of three judges will determine whether to issue the warrants and allow a case to proceed. The process could take several weeks.

Once an arrest warrant is issued and a suspect is detained at The Hague, a pretrial hearing takes place, and if the charges are confirmed, a trial follows. Only a handful of cases have been tried by the ICC since its creation, prompting some to scrutinize its efficiency.

ICC’s relationship to Israel and Palestinian territories

Neither Israel, nor the U.S., ratified the Rome Statute and are, thus, not parties to the court. However, if Netanyahu or Gallant were to travel to a nation that is a party to it, officials there could arrest them.

Israel’s relationship with the ICC has often been tense, with the Jewish state often accusing the U.N. and other international bodies of bias. Netanyahu on Monday called Khan’s decision “outrageous,” claiming it will “cast an everlasting mark of shame on the international court.”

The UN General Assembly in 2012 changed the Palestinians’ status from a UN observer to a nonmember observer state, paving the way for Palestinian territories to join the ICC and other international organizations, The Associated Press reported.

In 2015, the ICC accepted “The State of Palestine,” a year after the Palestinians accepted the court’s jurisdiction, the news wire added.

Khan visited Ramallah and Israel, where he met with Palestinian leaders and the families of Israelis killed or taken hostage by Hamas militants in the Oct. 7 attack, the AP added.

The ICC prosecutor reportedly described Hamas’s actions as “some of the most serious international crimes that show the conscience of humanity, crimes which the ICC was established to address,” per the AP. He noted “international humanitarian law must still apply” and returned from his visit stating an investigation into potential crimes by Hamas militants and Israeli forces was a “priority.”