UPDATE: Adding another dangerous twist to the Israel-Hamas War and its impact, the International Criminal Court (ICC) has announced that it has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, as well as Mohammed Deif, a commander from the genocidal terror group Hamas.
Read AJC's Statement
The Court's Pre-Trial Chamber I said that it had issued the warrants for Netanyahu and Gallant for "crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024," which is the date that ICC Chief Prosecutor Karim Khan announced he would be seeking the arrest warrants.
The court said it had found reasonable grounds to believe that Netanyahu and Gallant “each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”
In a separate statement, the ICC also issued an arrest warrant for Deif, who Israel says was killed in an airstrike on July 13. ICC Chief Prosecutor Khan had previously sought warrants for Hamas terror leaders Yahya Sinwar, the mastermind of the October 7 massacre, and Ismail Haniyeh for the war crimes and crimes against humanity of extermination, murder, taking of hostages, rape and sexual violence, torture, and other inhumane acts following the October 7 terror attack on Israel. However, Khan dropped the legal proceedings against them after their deaths on July 21 and Oct. 16.
AJC CEO Ted Deutch slammed the ICC's decision to issue warrants from Netanyahu and Gallant.
"Equating the leaders of a democratic state exercising its right to self-defense with a terrorist organization responsible for the rape, murder and mutilation of over 1,200 innocent people, the kidnapping of 251, and the continued captivity of 101, is an intentional distortion of justice, morality, and international law founded on virulent anti-Israel animus."
Here’s what you need to know about the ICC, its history and powers, and how this will affect the Israel-Hamas war.
Why is this a dangerous development in the Israel-Hamas War?
The ICC’s decision to issue arrest warrants for Israeli leaders is a distortion of international law that harms the Court’s credibility, completely undermines its core mandate, and emboldens enemies of democracy around the world.
Rather than acknowledging the reality that Israel’s military actions in Gaza are solely focused on defeating the internationally recognized terror organization Hamas, securing the safe return of the 101 hostages still held by the terror group, and protecting Israelis from further attack, the Court embraced the false claims that Israel is acting with malicious intent toward Palestinians, restricting humanitarian aid as a tool of punishment, and deliberately attacking and harming civilians. Perversely, the Court even cited Israel’s efforts to increase humanitarian aid entering Gaza in the spring of 2024 as evidence of ill intent, suggesting that prior restrictions had not been dictated by military necessity but intended to cause Palestinian civilians harm.
Click here to read AJC's full statement on the ICC's decision and why it is dangerous.
What is the International Criminal Court?
The International Criminal Court (ICC) is an independent international judicial tribunal based in The Hague. It was established in 2002 by the Rome Statute, a treaty that spells out what crimes the ICC should investigate and adjudicate and when it can do so. The ICC can prosecute individuals for four main categories of crimes: war crimes, crimes against humanity, genocide, and aggression. Importantly, the ICC can investigate and prosecute not only State actors but also non-state actors like the leaders of Hamas.
Considered a court of last resort, the ICC adjudicates when national legal systems fail to prosecute such crimes—a principle of complementarity that respects the role of independent judiciaries in sovereign states.
Belle Yoeli, AJC’s Chief Advocacy Officer, explains why the ICC's charges are not only baseless but also undermine justice.
Is the International Criminal Court part of the United Nations?
The ICC should not be confused with the International Criminal Court of Justice (ICJ), the judicial arm of the United Nations. The ICJ settles legal disputes between states and issues advisory opinions upon request by UN entities.
Like the ICC, the ICJ only has limited jurisdiction over certain situations. Israel has been compelled to participate in ICJ proceedings concerning a complaint against it brought by South Africa because both States are parties to the Genocide Convention, a treaty that gives the ICJ jurisdiction to settle disputes about its enforcement. “Palestine” has not signed the Genocide Convention, and Hamas cannot do so as a non-State actor, so neither can be a party to that ICJ case.
Is Israel a member of the ICC?
Israel is not a member, or what’s called a “State party,” of the ICC, though it did play an important role in negotiations during the drafting of the Rome Statute. But at the end of the day, Israel did not sign the Rome Statute and join the ICC. Why? The ICC was intended to focus on the most heinous crimes, including genocide and crimes against humanity. But, urged by a number of Arab countries, a majority of countries agreed to add the transfer of civilians into an occupied territory to the list of crimes the Court would have jurisdiction to prosecute. Israel’s diplomats objected that States were distorting international law and not mirroring the language of the Geneva Convention in order to specifically prosecute Israelis for actions in the West Bank.
The U.S. also played a significant role in the Rome Statute negotiations but ultimately did not join the ICC, citing concerns that it would be politicized and used to target American officials for U.S. actions overseas, undermining U.S. national sovereignty.
Can the ICC prosecute the State of Israel?
No, the ICC only prosecutes individuals, not states.
Can the ICC prosecute Israelis?
In short, it is a question of jurisdiction.
Israeli officials have vigorously rejected the ICC’s authority to investigate or try Israelis for actions in Gaza or the West Bank. Israel is not alone: countries, including the U.S. and the United Kingdom, have also insisted that the ICC does not have jurisdiction over Israelis in this case. AJC agrees with this position.
However, the Palestinians and the ICC see it differently.
One way the ICC can gain jurisdiction is if a State asks the ICC Prosecutor to investigate a situation on its own territory, thereby delegating to international authorities its own sovereign power to investigate.
Since 2009, Palestinians have been pursuing this route and asking the ICC to investigate the situation in the territory of “the State of Palestine.” But at no point has the UN Security Council accepted Palestine’s requests for UN Member State status (in fact, it has twice declined it), with States like the U.S. stressing the lack of essential State attributes like an effective government, given that Hamas controls Gaza. Nor has the UN Secretariat ever actually determined that “Palestine” has the legal capacity of a State.
Instead, the UN General Assembly adopted a resolution in 2012 making the “State of Palestine” a “non-member observer State.” This status upgrade enabled the Palestinian Authority (PA) to begin signing international treaties over which the United Nations is the custodian, including the Rome Statute.
In February 2021, the pre-trial chamber of the Court determined that the ICC did have jurisdiction over Israel, Gaza, and the West Bank, based on the 2012 UNGA resolution and the UN’s acceptance of Palestine’s treaty signatures.
Meanwhile, it said it had no authority to assess whether Palestine was, in fact, a State that could turn to the ICC for adjudication, but allowed a full investigation to open anyway. It also suggested that the issue of jurisdiction could be revisited should the Prosecutor seek arrest warrants, laying the groundwork for the controversy that has erupted now.
In addition, there is no question that Hamas celebrates its leaders’ international crimes against Israelis and has no intention of holding them accountable. But unlike the Palestinian Authority and Hamas, Israel has an independent judiciary capable of addressing any alleged illegal acts committed by members of its military force.
In fact, since the beginning of the conflict, Israel's Military Advocate General has opened 55 criminal investigations; its Fact Finding and Assessment Mechanism is simultaneously addressing hundreds of incidents; and Israel’s law enforcement agencies are examining dozens of statements made and recently decided that some cases justify the promotion of criminal proceedings.
That factor alone should have led the Prosecutor to decline to seek warrants against Israelis.
Can the ICC prosecute the terror group Hamas?
Hamas is an internationally recognized terror group backed by Iran. The savage attack on Israeli civilians by Hamas terrorists on October 7 was an egregious violation of International Humanitarian Law that amounts to war crimes.
However, the ICC does not have jurisdiction over the situation because Palestine is not a state, and no international body with the authority to do so has determined that it is one. Nor has any other mechanism in the Rome Statute been triggered that would allow the Court to consider this case. The consequences of the ICC's 2021 decision to defer conclusively answering this foundational question are now evident.
Can the ICC arrest Netanyahu and Gallant?
No. The warrant has no enforcement mechanism. Instead, the ICC relies on the cooperation of its more than 120 member states to enforce its decisions. While ICC member countries are required to act on the court’s arrest warrants, political, diplomatic, and legal considerations can also play a factor in their respective decisions to arrest individuals.
Israel and the United States are not signatories to the Rome Statute.
What is Israel’s response to the ICC's decision?
The Prime Minister’s Office declared in a statement on Thursday that the ICC’s “antisemitic decision” to issue arrest warrants against Netanyahu and Gallant “is equivalent to a modern Dreyfus trial.”
Meanwhile, Israeli leaders from across the political spectrum condemned the ICC’s decision.
Foreign Minister Gideon Sa’ar called the move "a loss of the ICC’s legitimacy," accusing it of serving "radical forces" undermining Middle East stability. Opposition Leader Yair Lapid said that Israel is "defending its existence from terrorist groups that attacked, murdered and raped out citizens. These arrest warrants are a prize for terrorism.”
Knesset Speaker Amir Ohana called the decision an assault on justice and democracy, while Education Minister Yoav Kisch vowed Israel would continue defending itself.
Benny Gantz, a former minister in Israel's war cabinet and current opposition figure, called the ICC’s decision “moral blindness and a shameful stain of historic proportions that will never be forgotten.”
Israel’s defensive war, launched after Hamas’ brutal October 7 attack, during which more than 1,200 people were murdered, thousands injured, and more than 250 kidnapped, has been carried out utilizing a military code of conduct that strives to protect civilian life. That civilians have been harmed anyway is a deeply regrettable consequence of Hamas’ lawless tactics, not evidence of Israel’s criminal intent.
What is the international community’s response?
There has been bipartisan outrage in the United States. The Biden Administration condemned the ICC’s decision to issue arrest warrants for senior Israeli officials, with a White House spokesperson stating, “The United States fundamentally rejects the Court’s decision to issue arrest warrants for senior Israeli officials. We remain deeply concerned by the Prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision. The United States has been clear that the ICC does not have jurisdiction over this matter. In coordination with partners, including Israel, we are discussing next steps.”
U.S. Representative Mike Waltz, who is set to become National Security Advisor for President-elect Trump, posted on X, “The ICC has no credibility and these allegations have been refuted by the U.S. government. Israel has lawfully defended its people & borders from genocidal terrorists. You can expect a strong response to the antisemitic bias of the ICC & UN come January.” Senator John Thune, the incoming Senate Majority Leader, called the ICC decision “outrageous and unlawful,” adding, “The Senate should pass sanctions legislation targeting the ICC over its decision.” Earlier this year, the U.S. House of Representatives passed a bipartisan bill calling for sanctions on ICC officials for requesting arrest warrants for Netanyahu and Gallant.
Globally, the reactions have been mixed. Argentina’s President Javier Milei expressed his country’s “profound disagreement” with the ICC’s decision, stating, “It ignores Israel’s legitimate right to defend itself against constant attacks by terrorist organizations such as Hamas and Hezbollah.” Similarly, Paraguay strongly rejected the decision, saying that it compromises the legitimacy of the court, while weakening efforts for peace, security, and stability in the Middle East.
In Europe, several European Union countries, including Austria, Estonia, Hungary, and the Czech Republic, have expressed skepticism and condemnation for the ICC's decision. However, the EU’s High Representative, Josep Borrell, embraced the decision, underscoring the importance of accountability for alleged war crimes.
The United Kingdom offered a mixed response, with a spokesperson saying, “While we respect the ICC’s independence, we also support Israel’s right to self-defense,” adding, “There is no moral equivalence between Israel, a democracy, and Hamas and Lebanese Hizbullah, which are terrorist organizations.”
