What will be the implications of issuing recent warrants against powerful global leaders?
Hussain Muhammad Imam
The International Criminal Court (ICC) is a permanent international judicial body established in 1998 by the Rome Statute to ensure justice for committing genocide, war crimes, and crimes against humanity. The ICC is based in The Hague, Netherlands, and has the authority to sit anywhere in the world. Following 60 nations’ acceptance of the treaty, the Court opened on July 1, 2002.
The ICC was formed as a last resort to prosecute the most severe crimes when national tribunals fail. The International Court of Justice (ICJ) hears state disputes, but the ICC prosecutes individuals.
By 2002, China, Russia, and the US had declined to join, and the US threatened to remove its troops from UN peacekeeping forces unless the ICC exempted its citizens (military and civilian). Within five years of its initial meeting, more than 100 countries ratified the treaty.
Historical background of ICC
After the Franco-Prussian War in the 1870s, Gustav Moynier, a founder of the International Committee of the Red Cross, proposed a permanent international court.
After WWI, Treaty of Versailles negotiators proposed an international court to trial the Kaiser and German war criminals. The Kaiser was never tried, but Article 227 of the Treaty of Versailles1 retained the plan.
The Moscow Declaration of 1943 and the Potsdam Declaration of 1945, issued by the US and its Allies, called for German and Japanese war crimes to be punished.
After WWII, the Allies established the Nuremberg and Tokyo trials to punish German and Japanese war leaders. These cases showed that anyone might be held criminally liable for international crimes, regardless of official rank.
On December 9, 1948, the UN General Assembly enacted the Convention on the Prevention and Punishment of Genocide, which required international tribunals to try genocide perpetrators.
The Geneva Conventions of 1949 were adopted by a Geneva Diplomatic Conference led by the International Committee of the Red Cross on August 12, 1949.
In the 1960s, Israeli secret police arrested Adolf Eichmann in Argentina, who was prosecuted and convicted in Israeli courts for the wholesale extermination of millions of Jews during World War II. It was the first retroactive genocide conviction and a turning point in the use of universal jurisdiction by a national jurisdiction for international atrocity crimes.
Despite these early efforts, the General Assembly postponed considering the subject, and the Cold War halted international criminal law growth for decades.
In December 1989, the General Assembly ordered the International Law Commission to resume work on a drug-trafficking international criminal court at Trinidad and Tobago’s request. The 1993 conflict in the former Yugoslavia brought war crimes, crimes against humanity, and genocide under the cover of “ethnic cleansing” back to world notice. To end this enormous human suffering, the UN Security Council created the ad hoc International Criminal Tribunal for the Former Yugoslavia to punish past atrocities and deter future ones.
For justice, former UN Secretary-General Kofi Annan urged the need for the ICC. He stated that “For nearly half a century — almost as long as the United Nations has been in existence — the General Assembly has recognised the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought . . . that the horrors of the Second World War — the camps, the cruelty, the exterminations, the Holocaust — could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, and Rwanda. Our time — this decade even — has shown us that man’s capacity for evil knows no limits. Genocide . . . is now a word of our time, too, a heinous reality that calls for a historic response.”
He also added, “We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta, and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.”
At its fifty-second session, the General Assembly summoned the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held in Rome from June 15 to July 17, 1998, “to finalise and adopt a convention on the establishment of an international criminal court.”
At the Rome Conference, 120 countries resolved to open the Rome Statute of the International Criminal Court for signature and ratification on July 17, 1998.
Significant Role and Legal Proceedings by ICC
The International Criminal Tribunal for Rwanda (ICTR) sentenced former Taba Commune Bourgmestre Jean-Paul Akayesu to life in prison for genocide on September 2, 1998. The ICTR was the first international tribunal to serve justice on genocide.
The ICC charged Yugoslav President Slobodan Milošević on May 27, 1999. It was the first international court indictment of a sitting leader.
After a decade-long civil war with the United Revolutionary Front (RUF), led by Foday Sankoh and supported by former Liberian President Charles Taylor, the government and the UN signed an Agreement establishing a Special Court for Sierra Leone. On April 2, 2002, Taylor was convicted of aiding and abetting war crimes for funding the RUF with illegal diamond mine revenues.
The Cambodian Royal Government and the UN established the Extraordinary Chambers in the Courts with an agreement on June 6, 2003. The Court was founded after a 20-year Cambodian civil war after the 1979 Khmer Rouge fall. During their nearly four-year reign, the Khmer Rouge killed at least 1.7 million civilians through starvation, torture, execution, and forced labour.
Ugandan Lord’s Resistance Army suspects received ICC arrest warrants on October 13, 2005. The ICC first released warrants for Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen.
The ICC extradited Patriotic Front for the Liberation of the Congo commander Thomas Lubanga Dyilo to The Hague on March 16, 2006. In the ICC case, he is the first suspect.
Pre-Trial Chamber I issued an arrest warrant for Omar Hassan Ahmad Al Bashir on March 4, 2009, for war crimes and crimes against humanity in Darfur. The warrant was the first ICC indictment of a sitting leader. On July 12, 2010, the Chamber issued a second arrest warrant for Al Bashir, adding genocide to the charges.
Kenyan President Uhuru Muigai Kenyatta voluntarily appeared before the Court on April 8, 2011, in response to a summons.
Thomas Lubanga Dyilo is convicted of war crimes in the Democratic Republic of the Congo for enrolling and conscripting minors under 15 to fight. The Court’s first ruling. On July 10, 2012, the Trial Chamber convicted Lubanga Dyilo to 14 years in jail and ordered restitution for victims.
On March 22, 2013, Bosco Ntaganda became the first suspect to voluntarily surrender to the ICC. Ntaganda is accused of being the Patriotic Forces for the Liberation of Congo (FPLC)’s former Deputy Chief of Staff and leader of operations.
Germain Katanga was convicted guilty of war crimes (murder, attacking a civilian population, property destruction, pillaging) and crimes against humanity (murder) in Ituri, Democratic Republic of the Congo, on March 7, 2014. Court’s third judgement and second conviction.
Ahmad Al Faqi Al Mahdi was charged with war crimes for intentionally directing attacks against religious and historical monuments on March 24, 2016, the first case involving cultural heritage destruction and the first guilty plea.
On May 30, 2016, the Extraordinary African Chambers (EAC), formed by Senegal and the African Union, sentenced former Chadian President Hissène Habré to life for torture, war crimes, and crimes against humanity.
Jean-Pierre Bemba Gombo is convicted of war crimes and crimes against humanity (murder, rape, and pillaging) in Central African Republic. Jean-Pierre Bemba Gombo received an 18-year sentence from Trial Chamber III on June 21, 2016.
In November 2019, the ICC began investigating Myanmar’s armed forces’ alleged crimes against the Rohingya, a Muslim group in Rakhine (Arakan) state.
After Russia invaded Ukraine in March 2022, the ICC began investigating Russian military crimes in Ukraine. The ICC issued a warrant for Russian President Vladimir Putin’s arrest in March 2023 for war crimes including unlawful deportation and illegal transfer of Ukrainian children from Russian-occupied Ukraine to the Russian Federation.
Muhammad Yunus, chief advisor to the interim government of Bangladesh, his advisory panel, and student leaders filed an indictment to the ICC for serious international crimes on November 8, 2024. Yunus and 61 others are allegedly accused of they involved in violence, repression, and persecution against minority groups, law enforcement officials, and political opponents under Article 15 of the Rome Statute.
Anwaruzzaman Chowdhury, former Mayor of Sylhet city corporation filed the case, alleging that the government, under Yunus’s orders, orchestrated violence from August 5 to 8 that caused widespread bloodshed. Chowdhury’s lawsuit alleges that the government targeted police, the Bangladesh Awami League and its affiliates, and Bangladeshi minority communities like Hindu, Christian, and Buddhist. The case alleges mass murders, forced evictions, systematic brutality, and property devastation.
The case’s lead legal expert Nijhoom Majumder, said “the allegations brought forward in this complaint highlight a deliberate, systematic effort to repress opposition and minority voices within Bangladesh. The ICC is the last resort for the victims, who have exhausted all domestic avenues for justice.”
On November 21, 2024, Pre-Trial Chamber I of the International Criminal Court (‘Court’) for the Situation in the State of Palestine unanimously rejected two challenges by Israel (‘Israel’) under articles 18 and 19 of the Rome Statute. Benjamin Netanyahu and Yoav Gallant received arrest warrants.
The Chamber issued warrants of arrest for Benjamin Netanyahu and Yoav Gallant for crimes against humanity and war crimes perpetrated from October 8, 2023, to May 20, 2024, when the Prosecution filed the warrants. Is “reasonable grounds” that Netanyahu and Gallant “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity,” said. Gaza officials said that Israel’s 13-month campaign in Gaza has killed 44,000 Palestinians, displaced nearly all the enclave’s population, and caused a humanitarian crisis.
The Court also “unanimously” issued an arrest warrant for Hamas military commander Mohammed al-Masri, known as Mohammed Deif, “for alleged crimes against humanity and war crimes committed” in Israel and Palestine from October 7, 2023. It accused him of murder, torture, rape, and sexual assault. Around 1,139 Israelis were murdered and another 200 were captured in Hamas-led attacks that day.
South Africa, Bangladesh, Bolivia, Comoros, and Djibouti referred the Situation in Palestine to the Office of the Prosecutor on November 17, 2023.
ICC rejected Israel’s jurisdiction claims and issued a warrant for a Hamas leader. Its top prosecutor wants Israel and Gaza war crimes convictions.
Netanyahu’s office stated “Israel rejects with disgust the absurd and false actions levelled against it by ICC.” The office also labelled the move “anti-Semitic” and compared it to a “modern-day Dreyfus trial,” a 20th-century French military veteran of Jewish heritage who was falsely convicted of treason.
Israeli opposition leader Yair Lapid criticised the Court’s ruling. Meanwhile, former Defence Minister Avigdor Lieberman wrote on X that Israel “will not apologise for protecting its citizens and is committed to continuing to fight terrorism without compromise.”
Hamas political bureau member Basem Naim said, “[It is] an important step towards justice and can lead to redress for the victims in general, but it remains limited and symbolic if it is not supported by all means by all countries around the world.”
One US National Security Council spokeswoman denied that the ICC had jurisdiction in this issue, saying that Israeli authorities were discussing “next steps.” Israel and the U.S. are not ICC members.
“The United States fundamentally rejects the court’s decision to issue arrest warrants for senior Israeli officials,” the spokesman said. “We remain deeply concerned by the prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision.”
“Netanyahu and Gallant are war criminals, and some country will bring them to justice, no matter how long it takes,” said Shaban Abed, 47, a technical engineer from Gaza City who is now in Khan Younis. He called the Court’s action “late, but never too late.”
Rabeeha, a Gaza City mother of five who gave her first name, thought it would stop the fighting.
“I hope we can soon see Netanyahu and the criminal Gallant in jail,” stated. “Now they can’t travel, now they are being hunted.”
Gideon Saar, Israel’s foreign minister, claimed the ICC “lost all legitimacy” after issuing Netanyahu and Gallant’s arrest warrants.
“A dark moment for the International Criminal Court,” Saar stated on X, adding “absurd orders without authority.”
EU foreign policy chief Josep Borrell said the court’s ruling should be respected and followed because it was not political. “The tragedy in Gaza has to stop,” stated.
Jordan’s foreign minister Ayman Safadi said the ICC’s decision must be executed and Palestinians deserve justice for Israel’s “war crimes” in Gaza.
The Netherlands’ foreign minister, Caspar Veldkamp, said his country acts on arrest warrants for people on its territory and will not engage in “non-essential” contacts.
Lindsey Graham, a republican senator, said: “The Court is a dangerous joke. It is now time for the US Senate to act and sanction this irresponsible body.”
Consequences of ICC Warrants
According to legal expert Gerhard Kemp, “European countries and other traditional allies of Israel in the West will be under pressure to immediately take a position.”
Like Sudan’s Omar Al-Bashir and Russian President Vladimir Putin, this arrest warrant for Netanyahu “will pose significant diplomatic and political challenges for members of the ICC, especially states party in the West—like Germany and the UK,” he continued.
“Of course, states party to the Rome Statute have the legal obligation … but as we have seen with Bashir (when South Africa and Jordan and other states failed to execute the arrest warrant) and more recently Mongolia (when it failed to arrest Putin), member states often find it politically difficult to follow through with their obligations,” he said.
The UK, Canada, Australia, Germany, France, Belgium, Italy, Netherlands, and Norway are among Israel’s staunchest Western friends, who have given it arms and diplomatic cover to commit atrocities against Palestinians.
Israel’s leaders would also avoid Spain, Switzerland, Denmark, Croatia, Czech Republic, Finland, Hungary, Portugal, and Poland.
Greece, New Zealand, South Korea, Japan, South Africa, Nigeria, Mexico, Kenya, Colombia, and Brazil are major ICC signatories.
Since the ICC has no enforcement mechanism, it relies on member states to execute the court order.
The ICC manual states that some non-signatories participated in surrender procedures.
The UN Security Council can suspend or defer an inquiry or prosecution for a year, possibly renewing it annually, under the Court’s regulations.
The issuance of an ICC arrest warrant is not a formal travel ban. However, they risk being arrested if they travel to an ICC signatory state, which may influence indictees’ decision-making.
After an arrest warrant is issued, the country involved or the person mentioned in the warrant may oppose the Court’s jurisdiction or the case’s admissibility.
All ICC signatory countries and the Big Three—China, Russia, and the United States—should proactively ensure global peace, security, and justice to hold them accountable who committed genocide, war crimes, and crimes against humanity.
EU Bureau Chief, The Voice