What is the ICC? International Criminal Court at heart of Israel-Gaza showdown

Judges in The Hague can try world leaders for war crimes - but Israel-Gaza war shows limits of their powers

The International Criminal Court began work in The Hague in 2002. AFP

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The demand for tyrants and war criminals to be “sent to The Hague” has become a familiar slogan in the language of world politics – but as the Israel-Gaza war shows, it's not usually that simple.

The International Criminal Court has powers to try world leaders and generals for some of the gravest crimes, such as genocide, torture and wars of aggression. Its founding document says such crimes “must not go unpunished” even if domestic courts are “unwilling or unable” to act.

But its high principles often collide with realities of world politics that came sharply into view on Thursday when Israel's Prime Minister Benjamin Netanyahu visited his ally Hungary, defying an ICC warrant to have him arrested. Hungary duly said it would withdraw from the ICC.

Israel's Prime Minister Benjamin Netanyahu, right, visited Hungarian ally Viktor Orban on Thursday in defiance of an ICC arrest warrant. AFP

The case against Mr Netanyahu, former Israeli defence minister Yoav Gallant, and three Hamas leaders – all now dead – has sparked a flurry of legal and political arguments along familiar lines. Allies of Israel such as the US argued it was for Israeli courts to hear the claims, while supporters of Palestine disagreed.

There is a perception that the ICC never goes after the West or its allies – so the Netanyahu case is sure to put its standing to the test.

Why does the ICC exist?

Set up in 2002, the ICC is not the same as the much older International Court of Justice, which hears disputes between nations rather than charges against individuals. Both have their seat in The Hague, in the Netherlands.

Before that, war crimes were prosecuted under one-off arrangements such as the Nuremberg trials of Nazi war criminals, which introduced the concept of crimes against humanity. A similar tribunal for the former Yugoslavia found Serb commanders guilty of the 1995 genocide of Bosnian Muslims at Srebrenica.

The Yugoslavia trials fuelled an appetite for a permanent court, leading to the establishment of the ICC.

The Israeli leadership is wanted by the ICC on allegations of using starvation as a method of warfare in Gaza. EPA

How does the ICC work?

The ICC has its own prosecutor, currently British lawyer Karim Khan, who brings cases to its attention. They can also be referred by the UN Security Council, but that rarely happens.

It can try cases in four areas – genocide; crimes against humanity, which include mass killings and torture; “grave breaches” of the Geneva Conventions, the laws of war; and the “crime of aggression” against another country.

British lawyer Karim Khan is the ICC's chief prosecutor and initiated the case against Israeli and Hamas leaders. Reuters

Not every country is a member – the US, Russia and Israel are notable countries missing. But Mr Netanyahu and Russian President Vladimir Putin have still been hit with arrest warrants due to their alleged actions in Palestine and Ukraine respectively, which are members.

Judges issue arrest warrants if this “appears necessary”, for example to ensure those arrested stand trial. But the ICC has no police force to and relies on countries to make the arrests. As Hungary's case shows, there's no guarantee of that.

If cases do proceed to trial they are heard by three ICC judges, who can order up to 30 years of imprisonment, or a life sentence in “exceptional circumstances”.

Who has been prosecuted at the ICC?

In its 23-year history the ICC has only convicted 11 people. The first was Thomas Lubanga, a Congolese warlord who conscripted child soldiers.

Dozens more have been placed under investigation but have evaded arrest, died or are yet to face trial. Those under arrest warrants include Mr Netanyahu, Mr Putin, Ugandan rebel leader Joseph Kony and Sudan's former president Omar Bashir.

Last month the former president of the Philippines, Rodrigo Duterte, was arrested by police in his home country and transferred to The Hague. He faces charges of mass killings related to his “war on drugs”.

Rodrigo Duterte's arrest on an ICC arrest warrant triggered rallies for and against the former Philippine president. AFP

What's happening in the Israel-Gaza ICC case?

Mr Khan announced his request for five Israel-Gaza arrest warrants in May last year. Judges granted the warrants for Mr Netanyahu and Mr Gallant in November, by which time Hamas suspects Yahya Sinwar, Ismail Haniyeh and Mohammed Deif were dead.

The case against the Israeli leadership turns on alleged crimes against humanity committed against civilians in Gaza, including depriving them of food, water, medicine and electricity. Judges in the preliminary round said that aid into Gaza was restricted with “no clear military need”.

Israel furiously opposed the arrest warrants, saying it “does not accept the court's authority”. The US also condemned the ICC for putting the leader of a democracy on a par with a militant group. US President Donald Trump issued sanctions against the court in February.

The ICC does not try suspects in their absence, so no verdict can be reached unless Mr Netanyahu and Mr Gallant are arrested or voluntarily stand trial in The Hague.