International Criminal Court Seeks Arrest Warrants for War Crimes in the Situation in the State of Palestine
On Monday, May 20, 2024, the Office of Prosecution of the International Criminal Court (ICC) requested a pre-trial chamber to issue arrest warrants for leaders of Hamas and Israel on charges of war crimes and crimes against humanity.
Israel: Netanyahu and Gallant
The Prosecutor of the ICC, Karim A.A. Khan KC, stated that Israeli Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant bear responsibility for crimes, including starvation of civilians as a method of warfare, “intentionally directing attacks against a civilian population, extermination “including in the context of deaths caused by starvation” and persecution. In his statement, the Prosecutor asserted that the crimes mentioned are part of a “widespread and systematic” attack on Palestinians under Israel’s “State policy” and emphasised that these crimes are still ongoing today.
The Prosecution cited various forms of evidence, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery, and statements from the alleged perpetrators. This evidence demonstrates that Israel has “intentionally and systematically” deprived civilians in Gaza of items essential to survival. Also, according to the Prosecution, Israel's conduct leading to these crimes was part of a larger plan to use starvation and violence as a means to eliminate Hamas, secure the return of hostages, and “collectively” punish the people of Gaza, “whom they perceived as a threat to Israel”.
While acknowledging Israel’s right to defend its people, the Prosecutor emphasised that such a right does not absolve Israel from its obligations under international humanitarian law. Regardless of the objective pursued, Israel used criminal means to achieve it. Reminding his previous statements regarding the urgent need for Israel to allow access to humanitarian aid in Gaza, the Prosecutor stated that he “could not have been clearer” and that “those who do not comply with the law should not complain later”.
Hamas: Sinwar, Al-Masri and Haniyeh
The Prosecution also seeks warrants for Yahya Sinwar (Head of Hamas in the Gaza Strip), Mohammed Diab Ibrahim Al-Masri, (commander-in-Chief of the military wing of Hamas), and Ismail Haniyeh (Head of Hamas Political Bureau) for crimes including extermination as a crime against humanity, taking of hostages, rape and other acts of sexual violence, torture, and outrages upon personal dignity as a war crime.
The Prosecutor stated that these crimes against humanity were part of a “widespread and systematic” attack towards Israeli civilians by Hamas and “other armed groups” due to “organisational policies”. Based on interviews with victims and survivors, as well as other evidence such as CCTV footage, authenticated audio, photo, and video material, statements by Hamas members, and expert evidence from six locations (Kfar Aza; Holit; the location of the Supernova Music Festival; Be’eri; Nir Oz; and Nahal Oz), the Prosecution holds Sinwar, Al-Masri and Haniyeh responsible for planning and instigating the commission of crimes on October 7th, which resulted in the “killing of hundreds of Israeli civilians and the taking of at least 245 hostages”. The Prosecutor emphasised that such crimes “could not have been committed” without their (Sinwar, Al-Masri, and Haniyeh) actions, and therefore “demand accountability”.
Additionally, based on medical records, video and documentary evidence, as well as interviews with victims and survivors, the Prosecutor claimed that there are “reasonable grounds” to believe that Israeli hostages are facing inhumane treatment in captivity and that some have been subjected to rape. He then reiterated his call for the immediate release of all hostages.
Report of the Panel of Experts
In order to support the review of evidence and legal analysis regarding arrest warrant applications, the Prosecutor sought the views of a panel of international law experts, such as Sir Adrian Fulford PC (former International Criminal Court Judge) and Baroness Helena Kennedy KC (President of the International Bar Association’s Human Rights Institute). The Panel's mandate was to advise the Prosecutor on whether his requests for arrest warrants met the criteria outlined in Article 58 of the Rome Statute of the International Criminal Court. Members unanimously agreed that the Prosecutor's work was “rigorous, fair and grounded in the law and the facts” confirming that the Court had jurisdiction over the case and that there were 'reasonable grounds to believe' that the individuals named in the arrest warrants have committed war crimes or crimes against humanity within the Court's jurisdiction.
Reactions to the Applications
Prime Minister Netanyahu said the decision was absurd and that he “rejects it with disgust the comparison of the prosecutor in the Hague between democratic Israel and the mass murderers of Hamas”. Similarly, U.S. President Joe Biden and the Secretary of State rejected the Prosecutor’s “equivalence of Israel with Hamas”. Furthermore, Israel’s War Cabinet Minister Benny Gantz stated that accepting the Prosecutor’s decision “would harm the ability of any country to defend its citizens and would constitute a crime of historical propulsion”. The Foreign Minister of Israel also condemned the application as a “historical disgrace that will be remembered forever”. Lastly, Hamas, in its statement, denounced the Prosecutor’s attempt to “equate the victim with the executioner”.
Legal Consequences
Under Article 86 of the Rome Statute, states parties have a general obligation to “cooperate fully” with the Court, and according to Article 89, which regulates the surrender of persons to the Court, signatory states shall “comply with requests for arrest and surrender” of the Court. This means that in case the Court grants the Prosecutor’s application and issues arrest warrants for these individuals, 124 states would be obliged to arrest and extradite them. This is especially troubling for Netanyahu and Gallant, who are public officials, as they would be restricted from traveling to countries that are parties to the Statute, including their closest current allies, the United Kingdom and Germany. On the other hand, Hamas and its leaders are already designated as terrorists by many countries, so a possible arrest warrant would not affect Hamas as much as it would Israel.
Conclusion
These arrest warrant applications mark a significant milestone in the long-standing Israeli-Palestinian conflict. If the Court accepts the Prosecutor’s request Netanyahu’s name will be listed alongside Gaddafi, Omar al-Bashir, and Putin. The Prosecution’s detailed presentation of a variety forms of evidence highlights the seriousness of the accusations against Netanyahu, Gallant, Sinwar, Al-Masri, and Haniyeh.
There are also political ramifications that need to be considered. Israel and its strong allies like the U.S. severely reject the Prosecution’s equivalence of Israel and Hamas. For Israel, it is a shame to be held equal with Hamas. This opposition demonstrates the fundamental controversies surrounding the Israeli-Palestinian conflict and the differing opinions within the international community.
Consequently, the Prosecution’s arrest warrant applications pose a sign of the continuing challenges in the effective enforcement of norms of international law. In such deep-rooted conflicts, the ICC carries a pivotal role in terms of seeking accountability. The Court’s future actions, whether it grants the applications or not, will most likely ignite further discussions on the impartiality and efficacy of international justice.
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