The Case Is Not About Genocide. No One May Be Arrested Or Tried. The Case is Unlikely to Change this War—But May Change The Next One
the Prosecutor of the International Criminal Court announced that he is requesting arrest warrants for Israeli and Hamas leaders for war crimes and crimes against humanity. Here are five things to know about the request.1. The ICC Case Is Not About Genocide
The allegations are for war crimes and crimes against humanity—not genocide. The allegations against Hamas’s leader in Gaza Yahya Sinwar, Al-Qassem Brigades leader Mohammed Deif, and political leader Ismail Haniyah include extermination as a crime against humanity, hostage taking, rape and other acts of sexual violence, and torture. The allegations against Israeli Prime Minister Benjamin “Bibi” Netanyahu and Defense Minister Yoav Gallant include starvation, persecution, and extermination as crimes against humanity and intentionally directing attacks against a civilian population.
The crime against humanity of “extermination,” is more broadly defined as “the mass murder of a demographic group.” Extermination may involve “deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.” It is distinct from genocide, which requires a high threshold of intent to destroy a racial, ethnic, religious or national group in whole or in part.
The warrant request was made under seal, with a public announcement detailing the alleged crimes. Other leaders of Hamas and Israel may be charged with the same crimes. Additional charges, including genocide, could still be added to the warrants. The Prosecutor’s announcement did not mention Hamas’s responsibility for war crimes against Gaza’s civilian population, such as use of human shields, but such charges could be added later.2. The ICC Prosecutor’s Request for Arrest Warrants May Not Result in a Trial
ICC Prosecutor Karim Khan’s request kicks off a years-long process that may or may not result in the named suspects’ arrests and trial. Next, the Pre-Trial Chamber will assess whether there are “reasonable grounds” to believe that the suspects have committed a crime within the Court’s jurisdiction. In the past, the Pre-Trial Chamber has taken several months to decide whether to issue warrants.
