International Criminal Court responsible for Netanyahu arrest warrant application, not International Court of Justice

In the wake of International Criminal Court (ICC) prosecutor Karim Khan’s announcement that he will apply for arrest warrants for Israeli prime minister Benjamin Netanyahu, as well as the Israeli defence minister and senior Hamas leaders, we’ve seen a number of posts on social media inaccurately claiming warrants have been sought or issued by the International Court of Justice (ICJ).

In a statement published on 20 May, Mr Khan said he was seeking arrest warrants for three senior Hamas leaders for alleged war crimes and crimes against humanity, as well as for Mr Netanyahu and defence minister Yoav Gallant, also for alleged war crimes and crimes against humanity. 

Arrest warrants have not yet been formally issued, as some of the posts claim. ICC judges will now consider whether to approve Mr Khan’s application in order for the warrants to be issued.

The ICC and the ICJ are two separate institutions

The ICC is a criminal court based in The Hague, Netherlands. It investigates and prosecutes individuals charged with four main crimes: genocide, war crimes, crimes against humanity and the crime of aggression.

The court was founded in 2002 following the adoption of the Rome Statute of the International Criminal Court, which established the above as international crimes. 

124 countries are currently States Parties to the Statute. Israel is not a State Party.

The ICJ meanwhile is part of the United Nations, having been established in 1945 by the UN Charter. As such all 193 UN member states, which include Israel, fall under its jurisdiction.

The court settles disputes over international law between countries (not individuals). It is not a criminal court and as such does not have the power to try those accused of international crimes or issue arrest warrants to individuals.

Did the ICJ allege Israel had committed genocide?

In remarks at a White House event celebrating Jewish American heritage month on Monday, 20 May, President Joe Biden said: “We reject the ICC’s application and arrest warrants against Israeli leaders, whatever these warrants may imply, there is no equivalence between Israel and Hamas... But let me be clear, contrary to allegations against Israel made by the International Court of Justice, what’s happening is not genocide.”

A separate case has been filed with the ICJ by South Africa, accusing Israel of acts which “are genocidal in character”.

An interim judgement made by the ICJ in January has led many to claim that the court has said its “plausible” genocide was being committed.

However, Joan Donoghue, who was president of the ICJ at the time of that judgement, has said this is not what the court stated.

She told the BBC: “[The ICJ] did not decide—and this is something where I'm correcting what’s often said in the media... that the claim of genocide was plausible.

“It did emphasise in the order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide. But the shorthand that often appears, which is that there’s a plausible case of genocide, isn’t what the court decided.”

It’s worth noting that the ICC arrest warrants applied for by Mr Khan concern war crimes and crimes against humanity—separate crimes to that of genocide.

Image courtesy of OSeveno