On Thursday, the International Criminal Court issued warrants for senior Israeli officials, including Prime Minister Benjamin Netanyahu, and leaders of Hamas for Crimes Against Humanity and War Crimes. The decision came six months after the ICC announced its intent to investigate the ongoing war in Gaza and ten months after the International Court of Justice found it plausible that Israel is in violation of its obligations to prevent and punish genocide.

The Center asked Melanie O’Brien, Associate Professor of International Law at the University of Western Australia, shed light on Thursday’s news and what it means for the ongoing investigations into war crimes committed in Gaza. In addition to her role at the University of Western Australia, Melanie is a Visiting Scholar at the Human Rights Center at the University of Minnesota’s Law School and was a Visiting Professor at CHGS last year.

The International Criminal Court has issued warrants for several Israeli leaders, including Netanyahu, as well as leaders of Hamas. This is in addition to ongoing investigation by the ICJ that was announced in January. Is there an overlap between these investigations?

The ICC is a court that investigates and prosecutes individuals for criminal responsibility, while the ICJ is a court that adjudicates disputes between states (countries), so it is about state responsibility. However, obviously, the ICC investigation into the Palestine Situation, and the ICJ case that South Africa has brought against Israel are related to the same atrocities. The difference is that the ICJ case is focused solely on genocide, as it is brought under the Genocide Convention. The ICC investigation can look at war crimes, crimes against humanity and genocide. The arrest warrants issued only include allegations of war crimes and crimes against humanity, but that does not mean that the Prosecutor cannot request additional charges of genocide at various stages of the process. It is also important to note that the ICJ does not conduct investigations, but rather only adjudicates on the facts and legal arguments put before it by states.  

The ICC warrant included findings of crimes against humanity and war crimes, but not genocide. Do you have a sense of why genocide was included in the ICJ investigation but not the ICC warrant?

Genocide is notoriously difficult to prove, and prosecutors tend to be hesitant to charge for genocide, instead preferring crimes against humanity, which have a lower threshold than genocide in terms of what needs to be proven. Genocide requires the ‘special intent’ (dolus specialis in legal latin terminology) on the part of the perpetrators, which is the intent of the perpetrators to destroy a group in whole or in part, and that is what is difficult to prove. The ICC Prosecutor Karim Khan requested these warrants six months ago, and he may have thought that he did not yet have enough evidence collated to request a warrant for genocide crimes. However, this does not mean he cannot add charges for genocide now or at a later stage of proceedings once he is satisfied that he has evidence that can prove these charges beyond reasonable doubt in court.

The ICJ case is about genocide because South Africa brought their case under the Genocide Convention. There is no crimes against humanity treaty under which South Africa could bring a case (negotiations for such a treaty are underway). And there are very technical legal reasons why South Africa did not bring any dispute under international humanitarian law (the laws of war).  

Israel and the United States are not state parties to the Rome Statutes, so given that, what’s the likelihood of anyone listed in the warrant being detained?

One of the biggest challenges for the ICC is that it does not have its own police force, and it relies on states to arrest and surrender persons who have an arrest warrant issued against them. The 124 state parties to the Rome Statute are obligated to arrest these persons and surrender them to the Court. Non-state parties have no such obligation. However, we have seen two instances of state parties ignoring their obligations with regards to heads of state visiting their countries. In 2015, then-President of Sudan, Omar al-Bashir visited South Africa (an ICC state party) and was not arrested, and South Africa was not sanctioned by the ICC. In 2024, Mongolia (an ICC state party) invited Vladimir Putin to visit, and during this visit, did not arrest Putin. This time, the ICC has chosen to refer Mongolia’s conduct to the Assembly of State Parties for sanction, and it remains to be seen what the ASP will do. However, it is important to remember that these heads of state who are under an arrest warrant are not travelling much, which demonstrates that the arrest warrants are having the effect of restricting their movement. A number of states party to the Rome Statute have already stated that they will arrest Netanyahu and Gallant as required under the Rome Statute, but of course it is unlikely they will travel to these countries and risk arrest. Of course, as non-state parties, Israel and the US are not obligated to arrest and surrender, nor are they likely to (and both have already expressed their disapproval at the arrest warrants). Overall, the likelihood of arrest is unfortunately low, but not impossible. 

Yet it is important to acknowledge that this is a significant moment for international criminal justice. The ICC now has arrest warrants out for two sitting heads of state, and one for a former head of state (who was a sitting head of state when the warrant was issued), which represents a shift in the direction of international law, which has long preferred immunity for heads of state.

Do you have an update on the ICJ process for South Africa v. Israel?

In October 2024, South Africa submitted its written memorial, which is its written submission to the court, to make its argument that Israel has violated the Genocide Convention. This has not been made public. The ICJ has issued three provisional measures orders (interim orders) requiring Israel to undertake a range of actions including allowing humanitarian aid into Gaza and allowing UN access to Gaza. These orders remain in force, but for the most part are not being complied with by Israel.