MIA SWART: The unintended ripple effects of an ICC arrest warrant

The prosecutor of the International Criminal Court (ICC), Karim Khan, recently made a request for arrest warrants for Israeli leaders Benjamin Netanyahu and Yoav Gallant, as well as three Hamas leaders Ismail Haniyeh, Yahya Sinwar and Mohammed Deif.

The request was met with great enthusiasm by many in the international community. This was the first time in the 22-year existence of the ICC that the court had requested an arrest warrant for a country with strong links to the West and specifically the US.

The arrest warrant request has to now be approved by a pretrial chamber of the ICC. Based on the amount of evidence the prosecutor had to produce to request the warrants, all expectations are that the request will be granted within weeks.

The crime of intentional starvation lies at the heart of the prosecutor’s case against Netanyahu and Gallant. Other crimes listed against Israel include wilful killing and murder and intentionally directing attacks against civilians.

But for all the excitement generated by the announcement, expectations should be tempered. It not only seems highly unlikely that a leader such as Netanyahu will ever appear before the ICC, but it is possible that the conflict could get worse before the prosecutor’s actions have the desired effect of stopping the conflict. Attempts at accountability and the imperatives of peace do not always go hand in hand.

The conflict in Sudan remains a good example of a conflict that did not abate because of an ICC arrest warrant. The first arrest warrant for former Sudanese president Omar al-Bashir was issued in 2009. Fifteen years later, the country remains immersed in civil war.

The feud between the leaders of the Sudanese Armed Forces and the paramilitary Rapid Support Forces (RSF) exploded into violence in April last year and the city of el-Fasher is considered the last domino to fall in Darfur as the RSF is about to take that city. The conflict has been characterised by the large-scale massacre of civilians and mass displacement. Millions of Sudanese are on the brink of starvation.

Without its own police force, the ICC could not enforce its arrest warrant for Bashir. Instead of ending his reign, the ICC arrest warrant helped strengthen his grip on power. In response to the ICC’s move, among other things, he created a new security force to secure his own protection: the RSF, drawn from the infamous Janjaweed militias that he had used to suppress rebellion in Darfur.

It is this same RSF that is now being accused of the bulk of atrocities since the conflict restarted last April. Experts such as Sarah Nouwen have argued that it is not the ICC but the people of Sudan, through brave and persistent protests, that brought down Bashir.

It has long been accepted that the wheels of international justice turn slowly. But in the case of the ICC the wheels often turn so slowly that one can hardly perceive any movement. This has been the case with regard to the court’s investigation into the situation in Palestine. The court has been dragging its feet for a long time. Former prosecutor Fatou Bensouda announced an investigation into war crimes committed in Palestine in 2019. The ICC made very little progress with that investigation and the ICC’s intervention did not seem to be any deterrent to Israel.

In spite of the more than seven-month delay in bringing an arrest warrant for crimes committed after October 7 2023, international lawyers and commentators praised the court’s decision with great enthusiasm.

It is difficult to envisage Netanyahu physically appearing before the ICC. A journalist who grew up in the former Yugoslavia told me that, growing up, she could never envisage former Serbian leader Slobodan Milosevic appearing before an international court in The Hague for the crime of genocide. Yet this happened in her lifetime. The ICC arrest warrants make it possible for us to at least imagine the unimaginable: individual criminal accountability for one of the US’s closest allies.

• Swart is a visiting professor at Wits Law School specialising in human rights, international relations and international law. She writes in her personal capacity.