What do the ICC’s arrest warrants mean for Israel and Hamas and what happens next?

The International Criminal Court’s (ICC) chief prosecutor, Karim Khan, announced on Monday that he is seeking arrest warrants for two Israeli and three Hamas leaders over war crimes and crimes against humanity, following the 7 October attack on Israel and the subsequent war on Gaza.

The arrest warrants have been sought for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh.

The court found they have enough evidence to suggest Israeli leaders are using starvation as a weapon of war, denying humanitarian relief efforts, deliberately targeting civilians and other crimes.

Hamas leaders are facing charges for alleged crimes including murder, taking hostages, and the ICC also stated they had reasonable grounds to believe the officials were responsible for acts of torture and cruel treatment.

Here, The New Arab explores what the warrants mean and what happens next.

What triggered the arrest warrants?

The warrants are based on the Hamas-led attack on Israel on 7 October which killed 1,200 people. The group also took around 250 captives to Gaza.

In response, Israel launched a brutal and indiscriminate war on Gaza, which has killed at least 35,200 Palestinians - most of them women and children, wounded 79,000 others, and devastated the enclave’s infrastructure.

Entire neighbourhoods in Gaza have been reduced to rubble, mass graves discovered in the grounds of hospitals occupied by Israeli forces, and the vast majority of the territory's population has become internally displaced.

The ICC prosecutor confirmed on Monday that crimes committed by Israel and Hamas fall under the court’s jurisdiction.

The ICC was established in 2002 and investigates people under a 1998 treaty known as the Rome Statute and is separate from the International Court of Justice, which does not prosecute states.

Instead, the ICC investigates alleged crimes carried out by a territory, national or any state that has accepted the court’s jurisdiction by being a signatory of the Rome Statute.

What steps will the ICC take next?

Khan's recommendation for ICC arrest warrants for the figures is the first stage in a process that could lead to a lengthy trial.

In the coming weeks and months, ICC judges will be looking at evidence compiled by the prosecutor.

If the court finds there is sufficient evidence of crimes, it can summon the suspect to appear voluntarily or issue an arrest warrant, relying on member countries to make the arrest and transfer the suspect to the ICC.

If the suspect appears before the court, a pre-trial takes place where the court decides if there is enough evidence for the case to go to trial.

Following this, a trial before three ICC judges, who are currently from Romania, Benin and Mexico, would be held. The judges would need to be convinced that there are “reasonable grounds” to believe that at least one crime within the court’s jurisdiction had been committed.

Once a verdict is passed, the charged person may be sentenced up to 30 years in prison, and under exceptional circumstanced may be given a life sentence.

Will Israeli and Hamas leaders be arrested or tried on charges?

The ICC has no power to enforce warrants, instead it relies on its 124 member countries to make arrests, transfer prisoners, freeze assets, and enforce sentences.

However, the ICC can prosecute individuals who commit crimes on the territory of member states.

Palestine became a member state of the ICC in 2015, meaning the court can investigate Israeli individuals for crimes committed in the occupied West Bank, East Jerusalem, and Gaza.

The US and Israel are not the member countries, and other leaders with arrest warrants against them have historically been able to ignore the warrants issued for their arrests.

Former Sudanese President Omar Al-Bashir, for example, has been charged by the court with genocide, crimes against humanity and war crimes, but has made several visits to ICC member states such as South Africa, Kenya and Chad without being arrested or turned over to the court.

The ICC has previously opened an investigation into war crime allegations committed in occupied Palestinian territories since June 2014.

What happens if an arrest warrant is issued?

If an arrest warrant for the named individuals is issued, the ICC will then rely on the member states to carry out arrests as part of their obligations under the Rome Statute.

To avoid arrest, the leaders are likely going to minimise their travel and be careful about where they do choose to go.

Netanyahu would not be able to visit close western allies without risking being arrested, while Ismail Haniyeh is likely to stay put in Qatar where he is based.

Even non-members, such as Turkey, could come under pressure to carry out an arrest.

However, the US, Russia and China would likely shrug off any pressure, meaning that Netanyahu would still be able to visit the US.

While Sinwar and Deif are believed to be in Gaza, which is under the ICC’s jurisdiction, no Palestinian leader or authority in the enclave are likely to arrest them.

If any of the individuals are arrested, they would be brought to The Hague where they would face a pre-trial hearing where the prosecutor presents sufficient evidence for the case to go to trial.

The suspects will have defence counsels present and can challenge the prosecution and its evidence.

The ICC does not allow any proceedings in absentia, meaning suspects will have to be physically present at The Hague for the trial to start.

Could there be more warrants?

In Khan’s statement on Monday, he stated there could be more warrants as they continue investigations, particularly into crimes of sexual violence and large-scale bombing in Gaza.

Khan said his office would not hesitate "to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met".

The warrants carry major political significance, and if they are issued, will mark one of the first times an ally of the US is held to account.