What is the International Criminal Court — and what authority does the ICC have to prosecute war crimes?

The International Criminal Court (ICC) is seeking arrest warrants for Israeli and Hamas leaders on charges of war crimes and crimes against humanity related to the Oct. 7, 2023, attacks on Israel and the subsequent war in Gaza, according to an exclusive CNN report.

For Israel, the ICC reportedly is seeking warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. For Hamas, the ICC is seeking warrants for Yahya Sinwa, the Hamas leader in Gaza, Mohammed Diab Ibrahim al-Masri — better known as Mohammed Deif — and Hamas political leader Ismail Haniyeh.

The applications were submitted by the court’s prosecutor, Karim Khan, and will be reviewed by a panel of ICC judges.

Khan told CNN that Israel had “every right and indeed an obligation to get hostages back” following the events of Oct. 7, but had to do it “by complying with the law.”

United States Secretary of State Anthony Blinken released a statement about the ICC’s decision to seek warrants.

“We reject the Prosecutor’s equivalence of Israel with Hamas. It is shameful,” the statement read. “Moreover, the United States has been clear since well before the current conflict that ICC has no jurisdiction over this matter.”

🌎 What is the International Criminal Court?

The ICC was founded in 2002 with the limited jurisdiction to prosecute individuals in regard to four crimes: genocide, crimes against humanity, war crimes and crimes of aggression.

Since its creation, the court has issued 46 arrest warrants, and 21 of those people have been detained in the ICC detention center in the Dutch city of the Hague, where the court is based.

⚖️ Does the ICC have any power?

While the ICC is an independent court and has jurisdiction over certain crimes, there are several areas where it requires cooperation from member countries to enforce its authority. The ICC doesn’t have a police force, so it relies on the law enforcement authorities in its 124 member countries to apprehend those charged with crimes.

However, several world powers are not members of the court, including China, Russia and the United States. Last year, the ICC sought an arrest warrant for Russian President Vladimir Putin for war crimes. However, because Russia doesn’t recognize the court's power, Putin hasn’t faced a trial.

Putin would have to travel to an ICC-member country, which would then have to direct its own law enforcement to arrest him. The ICC also can’t try individuals in absentia, so a trial wouldn’t be able to happen unless he’s brought to the court.

Israel is also not a member of the ICC, but Palestine, whose statehood status is contested, has been recognized as a member of the court since 2015. In 2021, the ICC announced it would open an investigation into possible crimes by Israel on Palestinian territory, making this application for a warrant nothing new for Israel leaders.

Still, every country that recognizes the ICC is obligated to cooperate with the court’s decisions, which would theoretically limit the places those charged could travel.

🇺🇸 Why is the U.S. not part of the ICC?

The ICC was created as a result of the Rome Statute, a treaty established at a United Nations conference in Italy and signed in 1998 by 120 countries — giving the ICC its power. President Bill Clinton signed the Rome Statute in 2000, but two years later President George W. Bush reversed course, and announced that the United States would not ratify the agreement.

John Bellinger III, a former legal adviser for the National Security Council, told NPR in 2022 that although the United States has supported international courts in the past, the country is wary of unchecked power or potential action against United States soldiers.

In 2020, President Donald Trump and the United States imposed sanctions on two ICC prosecution officials, Fatou Bensouda and Phakiso Mochochoko. In 2021, President Biden lifted those sanctions.