Alice Delhaye | 6 June 2024

Summary

• The International Criminal Court (ICC) Prosecutor has applied for arrest warrants to be issued for both Hamas and Israeli leaders.

• Both Hamas and Israel are leveraging religion as a way to undermine the ICC’s application for arrest warrants.

• The unfolding of the potential arrest warrants and the extent to which the ICC shows that it is not biased against certain religions will play a fundamental role in the ICC’s endeavour to increase its gravitas. 

On 20th May, 2024, the International Criminal Court (ICC) top Prosecutor Karim Khan applied for arrest warrants to be issued for both Hamas and Israeli leaders. Prosecutor Khan condemned the war crimes and crimes against humanity committed under the orders of Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh, on the territory of Israel and the State of Palestine since the 7th October 2023. Arrest warrants are also sought against Israeli Prime Minister Benjamin Netanyahu and Israeli Minister of Defence Yoav Gallant pursuant to the war crimes and crimes against humanity committed on the territory of the State of Palestine since the 8th October 2023.

Though a significant and symbolic step, applying for arrest warrants remains within the early stages of the criminal prosecution of individuals. Indeed, an ICC chamber of judges has yet to review this application. Arrest warrants will be formally issued once this chamber assesses the evidence gathered by the Prosecutor’s office, potentially granting their confidence in the fact that there are reasonable grounds to presume that war crimes and crimes against humanity have, in fact, been committed. 

While Prosecutor Khan emphasised in his statement the non-selective and objective application of international humanitarian law; both Hamas leaders and Israeli officials reacted to these potential arrest warrants linking religion, politics and law. Emphasising that Israel did not recognise the authority of the ICC, Netanyahu proceeded to accuse Prosecutor Khan of being “one of the great antisemites in modern times”. Similarly, Hamas leaders also responded virulently to Khan’s statement, accusing him of equating the victim with the executioner. Further, Hamas has increasingly been using the narratives of jihad and martyrdom since the start of the conflict. By calling fighters who died in the war ‘Shahids’- which translates to martyrs who died in Jihad - Hamas is also leveraging religion to legitimise its side of the conflict. 

Within Middle Eastern politics, religion and politics are generally much more intertwined than in the West. However, what the response of both parties underlines, is the need to analyse the ways in which the close linkage of politics with religion influences international law’s applicability and legitimacy. Indeed, recent events demonstrate that having religion and politics so intertwined is an opportunity for leaders to instrumentalise religion as a shield when facing criticism. With Hamas being a religious armed group and Israel being a state founded on the premise of the religious promised land, both parties to the conflict are using religion as a tool to delegitimise the decision of the ICC by respectively accusing it of islamophobia and antisemitism. Whereas both parties have been accused of war crimes and crimes against humanity, Hamas and Israel actively argue that the Court’s decision is motivated by religious hatred, seemingly to portray the ICC as a biased illegitimate institution. 

As such, the question remains as to how the ICC can improve its legitimacy in the eyes of Hamas and Israel, as well as their respective allies. The Court has already emphasised and shown that it is solely concerned with compliance with international humanitarian law, reiterating that Israel had the right to wage war according to the principle of self-defence, but nevertheless had the duty to respect international humanitarian law with respect to how it decides to conduct itself during the war. Moreover, in applying for these arrest warrants, the Court sought the legal counsel of an advisory panel composed of internationally recognised human rights lawyers. 

Despite the Prosecutor’s efforts to demonstrate the objectivity and nonpartisan character of his office’s decision, Israel and Hamas’ use of religion as a shield to exonerate themselves from the crimes they are accused of having committed may hurt the ICC’s legitimacy and, consequently, its effectiveness.

Forecast

• Short-term

  • Given the low legal threshold of the ICC to approve arrest warrants and the thoroughness of the Prosecutor’s investigation, the warrants against Israeli and Hamas leaders are likely to be issued in the upcoming weeks or months.

• Medium-term

  • If the ICC officially issued those arrest warrants, Netanyahu’s visits to other countries would be effectively constrained. Though its strongest ally, the United States is not a party to the ICC, other Western states, such as France, are members of the ICC and support the ICC’s decision. Travelling there entails risking being arrested. Similarly, Ismail Haniyeh, the leader of Hamas' political branch, may have to reduce his visits to many ICC member states.  

• Long-term

  • The unfolding of the potential arrest warrants against Israel and Hamas leaders will also heavily impact the already fragile legitimacy of the ICC. The ICC still lacks universal support and has already been accused of politically motivated prosecution: whether the arrest warrants are implemented and how will be significant for the evolution of the ICC’s gravitas.