The International Criminal Court (ICC) is seeking to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three senior Hamas leaders: Yahya Sinwar, Mohammed Diab Ibrahim al-Masri (known as Mohammed Deif), and Ismail Haniyeh.
The ICC Prosecutor Karim A.A. Khan announced the development in a statement on Monday, saying the warrants are to be issued “on the basis of evidence collected and examined by my Office.”
“My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel,” Khan said.
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Charges Against Hamas Leaders
The charges against the Hamas leaders are extensive and severe. They are accused of extermination and murder as crimes against humanity, contrary to Articles 7(1)(b) and 7(1)(a) of the Rome Statute.
Additionally, murder as a war crime (Article 8(2)(c)(i)), taking hostages as a war crime (Article 8(2)(c)(iii)), and rape and other acts of sexual violence as crimes against humanity and war crimes (Articles 7(1)(g) and 8(2)(e)(vi)) are included in the indictments.
They also face accusations of torture (Articles 7(1)(f) and 8(2)(c)(i)), other inhumane acts and cruel treatment (Articles 7(1)(k) and 8(2)(c)(i)), and outrages upon personal dignity (Article 8(2)(c)(ii)).
These charges are rooted in the systematic attacks against Israeli civilians and the taking of hostages during the conflict, which began on October 7, 2023. According to Khan, the evidence collected and examined by his office provides reasonable grounds to believe that Sinwar, Deif, and Haniyeh bear criminal responsibility for the heinous acts committed on Israeli soil and against its people.
“We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organizational policies. Some of these crimes, in our assessment, continue to this day,” he said.
Charges Against Israeli Leaders
Netanyahu and Gallant are similarly facing serious allegations. The ICC has charged them with using starvation of civilians as a method of warfare (Article 8(2)(b)(xxv)), willfully causing great suffering or serious injury to body or health (Articles 8(2)(a)(iii) and 8(2)(c)(i)), and willful killing and murder as war crimes (Articles 8(2)(a)(i) and 8(2)(c)(i)).
They are also accused of intentionally directing attacks against a civilian population (Articles 8(2)(b)(i) and 8(2)(e)(i)), extermination and murder as crimes against humanity (Articles 7(1)(b) and 7(1)(a)), persecution (Article 7(1)(h)), and other inhumane acts (Article 7(1)(k)).
These charges are connected to the alleged systematic deprivation of essential supplies to the civilian population in Gaza, leading to severe suffering and death. Khan disclosed that the investigation concludes Netanyahu and Gallant orchestrated and executed a policy that intentionally inflicted severe hardship on the Gazan population, constituting crimes against humanity and war crimes.
“My Office submits that the evidence we have collected, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group, shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival,” Khan noted.
The ICC’s Investigation
The ICC’s investigation is said to be comprehensive, involving interviews with victims, survivors, and eyewitnesses. The evidence includes CCTV footage, authenticated audio, photos, videos, medical records, and expert testimonies. Khan highlighted that the meticulous collection and analysis of evidence have led to these grave conclusions, painting a harrowing picture of deliberate and systematic violations of international law.
However, the evidence does not make it easy to effect the arrest warrant. Despite the ICC’s bold move, analysts believe that the likelihood of arresting Netanyahu remains slim, primarily due to geopolitical dynamics. This is because of the United States’ staunch support for Israel, which is believed, to pose a significant obstacle. Historically, the U.S. has opposed ICC actions that target its allies or its own nationals.
Geopolitical analysts acknowledged the significant challenges in effecting Netanyahu’s arrest, noting that the political shield provided by the United States makes it near impossible to bring him to justice under current international mechanisms.
The United States’ position on the ICC has been complex and often adversarial. While it has cooperated on certain issues, it has also enacted measures to protect its citizens and allies from ICC jurisdiction. For instance, the American Service-Members’ Protection Act (ASPA), often referred to as the “Hague Invasion Act,” authorizes the use of military force to free any U.S. or allied personnel detained by the ICC. This reflects the lengths to which the U.S. might go to protect Israeli officials from ICC prosecution.
Implications for International Justice
While the potential ICC’s warrants against both Israeli and Hamas leaders underscore its commitment to addressing alleged war crimes impartially, the practical enforcement of these warrants is fraught with the aforementioned difficulties. The court relies on the cooperation of states to apprehend and transfer suspects, a process complicated by political alliances and national interests.
The move to issue these arrest warrants has elicited strong reactions from various quarters. Israeli officials have condemned the ICC’s actions, accusing the court of bias and overreach. Netanyahu, in a defiant statement following earlier ICC’s rulings against Israel, has asserted that Israel will not be intimidated by politically motivated actions of the ICC and will continue to defend its citizens and sovereignty.
The case against Netanyahu, in particular, is seen as the biggest test of the ICC in recent time. Many believe that the ICC’s actions, while symbolically important, may not lead to actual prosecutions unless there is a dramatic shift in international political will.
Against this backdrop, Khan has called for synergy among the parties to the Rome Statue to approve and effect the arrest warrants, noting that the outcome could strengthen or undermine international laws.
“Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse,” he said. “In doing so, we will be loosening the remaining bonds that hold us together, the stabilizing connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.”
Khan further emphasized that no individual can act with impunity and that nothing can justify the deprivation of basic necessities required for life, the taking of hostages, or the targeting of civilians.
“Today we once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity,” he said.