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No, International Criminal Court hasn’t issued arrest warrant for Israeli prime minister Netanyahu – judges still to decide

IN SHORT: A number of social media posts are claiming that the International Criminal Court has issued an arrest warrant for Benjamin Netanyahu. But while the court’s chief prosecutor has applied for warrants against five people in the “situation in the State of Palestine”, the court has not issued them yet and the application is likely to take many months.

Note: This report includes details about a developing news story. Information was, as far as possible, correct at the time of publication but may change rapidly.

“The International Criminal Court issued an arrest warrant for Israeli Prime Minister Netanyahu,” reads the common version of a claim circulating on social media in Ghana, Kenya, Nigeria, Uganda and elsewhere since 20 May 2024.

Other versions include:

Benjamin Netanyahu has led Israel’s response to the 7 October 2023 attack by Hamas on his country, which killed more than 1,200 people. At least 245 hostages were taken and other crimes, including rape and torture, were committed during and after the attack. 

It was launched mainly from the Gaza Strip, a 363 square kilometre Palestinian territory wedged between Israel and the Mediterranean Sea.

Israel’s war on Gaza had as of 31 May 2024 killed more than 36,000 Palestinians in Gaza by both military action and a total blockade of essential supplies such as medicine and food. The war is said to be one of the most deadly of the many conflicts since the state of Israel was established within Palestine in 1948.

In December 2023 South Africa opened a case against Israel at the International Court of Justice for breaching the 1948 United Nations Genocide Convention by its actions in Gaza.

The convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

South Africa accused Israel of “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction”.

The case is known as South Africa vs Israel, and continues to be heard. Other countries, including Mexico, Libya and Colombia, have since joined South Africa in its suit.

But it’s not true that an arrest warrant has been issued for Netanyahu. Before we discuss why, let’s look at the difference between the two international courts.

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Cases against individuals, cases between countries

The International Criminal Court (ICC) and the International Court of Justice (ICJ) both work out of The Hague in the Netherlands to judge crimes against international law.

But there are important differences.

The ICJ – also known as the world court – is the main judicial body of the United Nations and hears disputes between states, such as South Africa vs Israel.

The ICC, by contrast, investigates and prosecutes individual people suspected of committing international crimes. These are set out in a treaty known as the Rome Statute and include crimes against humanity, war crimes and genocide.

ICC prosecutor files request to judges

On 20 May 2024 the ICC’s chief prosecutor, British lawyer Karim Khan, applied to the court’s first of two pre-trial chambers for arrest warrants against five people for war crimes and crimes against humanity in the “situation in the State of Palestine”.

The five are Netanyahu, as well as Israeli defence minister Yoav Gallant and Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh.

Khan’s application accuses Netanyahu and Gallant of the crimes of murder, starvation, attacks on civilians and more. The three Hamas leaders are accused of being responsible for similar crimes, as well as rape and torture.

But it’s still an application. At time of publication, the ICC has not issued any arrest warrant for the five. And Netanyahu has not been accused of genocide.

Khan’s application has to be decided by ICC judges in a process likely to take months. In March 2008, for example, the ICC prosecutor requested a warrant for the arrest of Sudanese military leader Omar al-Bashir. ICC judges only issued the actual warrant a year later, in March 2009.

The new application has been condemned by the United States, which has not signed the ICC’s Rome Statute. There is debate about whether the ICC will issue the arrest warrants at all.

At the time of publication, the ICC had not issued an arrest warrant for Israeli prime minister Netanyahu.

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