What are the ICC arrest warrants?

On November 21, 2024, the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant for crimes against humanity and war crimes committed in Gaza between October 2023 and May 2024.[1]

The ICC’s decision followed a long six-month delay since Prosecutor Karim Khan initially requested the warrants back in May.[2] The warrants are part of an investigation into alleged war crimes committed by Israeli and Palestinian officials in the occupied Palestinian territory (OPT) since 2014, which was launched in 2021.[3]

While the current arrest warrants are focused on crimes committed in Gaza, the ICC Prosecutor has hinted that additional warrants are likely forthcoming in relation to crimes committed in the West Bank and East Jerusalem.[4]

Separately, the ICC issued an arrest warrant against Hamas commander Mohammed Deif for war crimes and crimes against humanity, specifically related to attacks on Israeli civilians since October 7, 2023. Israel claims to have killed Deif, but this has not been confirmed by Hamas or the court. The Prosecutor had also requested warrants against two other Hamas leaders, Yahya Sinwar and Ismail Haniyeh, but they were confirmed to have been killed by Israel.[5]

What crimes did the ICC accuse Netanyahu and Gallant of committing?

The ICC found reasonable grounds to believe that Netanyahu and Gallant “bear criminal responsibility” as “co-perpetrators” for committing multiple horrific acts including the war crime of starvation as a method of warfare, as well as the crimes against humanity of murder, persecution, and other inhumane acts. The court found that these crimes “were part of a widespread and systematic attack against the civilian population of Gaza.”[6]

For example, the court found it reasonable to conclude that “both individuals 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.” Evoking the language of the crime of genocide, the ICC noted that this deprivation “created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.”[7]

The court also found reasonable grounds to believe that both Netanyahu and Gallant “bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza.” [8]

Is Canada obliged to comply with the warrants? 

Yes. Canada is among 124 countries that are signatories to the Rome Statute and are legally obligated to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court” (Article 86). Specifically, Canada must “comply with requests for arrest and surrender” (Article 89), since the ICC relies on the cooperation of states to bring suspects to trial.[9]

Canada is therefore obliged to arrest Netanyahu or Gallant if they ever step foot in Canadian territory, and then hand them over to the ICC to be tried in the Hague.

In addition to arresting suspects, States are obliged to actively cooperate with the ICC as outlined in Article 93 of the Rome Statute, including by sharing information about the location of suspects, gathering evidence, providing documents, seizing assets, and more.[10]

Does the ICC have jurisdiction to arrest Israeli leaders?

Yes. Israel is not a signatory to the Rome Statute but the crimes in question were committed in the occupied Gaza Strip. The State of Palestine is a signatory to the Rome Statute and the ICC has confirmed that it has jurisdiction over crimes committed in the territory, regardless of the nationality of those who committed them.[11]

Does Netanyahu have immunity from the ICC?

No. Article 27 of the Rome Statute is very clear that the statute “shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government […] shall in no case exempt a person from criminal responsibility under this Statute.”

This principle was confirmed in a recent ruling by the ICC regarding Mongolia’s refusal to comply with an arrest warrant for Russian President Vladimir Putin. Mongolia had argued that Russa is not a State Party to the ICC and therefore Putin has immunity as Head of State. However, the ICC concluded that the obligation to arrest suspects is “irrespective of their official capacity and nationality,” and that immunity agreements between states “do not protect individuals, including Heads of State, from prosecution by international criminal courts.” The ICC ruled that Mongolia had “failed to comply with its international obligations under the Statute by not executing the Court’s request for the arrest.”[12]

Israel has its own legal system, so why is the ICC allowed to intervene?

One important principle of the ICC is “complementarity”: the court only complements the work of national judicial systems and will not intervene if the country is investigating and prosecuting its own crimes. However, these must be “genuine criminal investigations” in relation to “the persons sought by the ICC and regarding substantially the same conduct alleged in the arrest warrants.”[13] According to an ICC spokesperson, “it's not enough to have a legal system, but there is a need to demonstrate that this legal system is active in relation to crimes or alleged crimes.”[14] To date, Israel has not only failed to launch credible investigations that could satisfy the ICC, but has expressed hostility towards the idea of investigating the alleged crimes.[15] 

What happens if Canada refuses to comply with the arrest warrant?

If Canada refuses to comply with the ICC’s request for warrant and arrest, the ICC may determine that Canada has failed to comply with its international obligations and refer its non-compliance to the Assembly of States Parties (ASP), the governing body of the ICC. The ASP may then decide to take action to induce Canada to comply with the ICC warrant.[16] This would be in line with how the ICC ruled on Mongolia’s failure to arrest Putin.[17]

How else should Canada respond to the ICC ruling?

Canada cannot maintain business-as-usual with a government whose leader is a fugitive of the ICC. Moreover, the crimes laid out in the ICC’s arrest warrants were not committed by Netanyahu and Gallant alone; many Israeli political leaders, military personnel, and civil society actors also share responsibility. Most of the crimes are still being committed today, including the use of starvation as a weapon of war. As such, Canada should cut off all diplomatic and economic relationships with Israel that risk aiding and abetting these ongoing war crimes and crimes against humanity against Palestinians. This should include a comprehensive two-way arms embargo, an end to the Canada-Israel Strategic Partnership Agreement, sanctions on Israeli political and military leaders, and more.

[1] International Criminal Court (ICC), “Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant,” November 21, 2024.

[2] ICC, “Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine,” May 20, 2024.

[3] CJPME Factsheet No. 228, “ICC Investigation of War Crimes in Palestine,” July 2022.

[4] ICC, “Statement of ICC Prosecutor Karim A.A. Khan KC on the issuance of arrest warrants in the Situation in the State of Palestine,” November 21, 2024.

[5] ICC, “Situation in the State of Palestine: ICC Pre-Trial Chamber I issues warrant of arrest for Mohammed Diab Ibrahim Al-Masri (Deif),” November 21, 2024.

[6] ICC, “Warrants of arrest for Benjamin Netanyahu and Yoav Gallant,” November 21, 2024.

[7] ICC, “Warrants of arrest for Benjamin Netanyahu and Yoav Gallant,” November 21, 2024.

[8] ICC, “Warrants of arrest for Benjamin Netanyahu and Yoav Gallant,” November 21, 2024.

[9] United Nations, “ICC issues arrest warrants for Israel, Hamas leadership: what happens next?”, November 23, 2024.

[10] ICC, “Arresting ICC suspects at large: Why it matters, what the Court does, what States can do,” online booklet, no date.

[11] ICC, “ICC Pre-Trial Chamber I issues its decision on the Prosecutor’s request related to territorial jurisdiction over Palestine,” February 5, 2021; ICC, “Warrants of arrest for Benjamin Netanyahu and Yoav Gallant,” November 21, 2024.

[12] ICC, “Situation in Ukraine,” No: ICC-01/22, October 24, 2024.

[13] Tom Dannenbaum, “Nuts & Bolts of the International Criminal Court Arrest Warrants in the ‘Situation in Palestine,’” Just Security, November 22, 2024.

[14] United Nations, “ICC issues arrest warrants for Israel, Hamas leadership: what happens next?”, November 23, 2024.

[15] Dalia Scheindlin, “Arresting Netanyahu: Why the ICC Doesn't Trust Israel's Justice System to Investigate Gaza War Crimes,” Haaretz, November 27, 2024.

[16] Middle East Eye, “Are Netanyahu and Gallant immune from ICC arrest warrants under international law?,” November 22, 2024; ICC, “Arresting ICC suspects at large: Why it matters, what the Court does, what States can do,” online booklet, no date; Tom Dannenbaum, “Nuts & Bolts of the International Criminal Court Arrest Warrants in the ‘Situation in Palestine,’” Just Security, November 22, 2024.

[17] ICC, “Situation in Ukraine,” No: ICC-01/22, October 24, 2024.

[1] Keter Group. About Us. Accessed July 15, 2024.

[2] Who Profits. “Keter Plastic Ends its Activity in the Occupied Palestinian Territory”. Accessed July 18, 2024.

[3] Human Rights Watch. “A Threshhold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution.”

[4] Ibid.

[5] International Trade Union Confederation (ITUC). “The Situation of Workers in the Occupied Palestinian Territories.” Accessed August 19, 2024.

[6] Amnesty International. "Chapter 3: Israeli Settlements and International Law." January 2019. Accessed July 15, 2024. 

[7] Who Profits. “Keter Plastic Ends its Activity in the Occupied Palestinian Territory”. Accessed July 18, 2024.

[8] Palestinian Civil Society. "Palestinian Civil Society Call for BDS." July 9, 2005. Accessed August 22, 2024.