ICC seeking arrest warrants for Hamas leaders and Israel’s Netanyahu

In a statement, ICC Prosecutor Karim Khan said that there were reasonable grounds to believe that Hamas’s Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif) and Ismail Haniyeh “bear criminal responsibility” for murder, extermination and taking hostages – among numerous other crimes – since the Gaza conflict erupted in the wake of Hamas-led attacks in southern Israel on 7 October.

There are also reasonable grounds to believe that Prime Minister of Israel Benjamin Netanyahu and Yoav Gallant, Israeli Minister of Defence, are responsible for other crimes and crimes against humanity “committed on the territory of the State of Palestine”.

Starvation tactic alleged

These include “starvation of civilians as a method of warfare as a war crime…intentionally directing attacks against a civilian population [and] extermination and/or murder”.

Although the ICC is not a UN organisation, it has an agreement of cooperation with the United Nations. And when a situation is not within the court’s jurisdiction, the UN Security Council can refer the situation to the ICC, granting it jurisdiction.

To complement the allegations, Prosecutor Khan, a British national born in Edinburgh, noted that his Office had interviewed victims and survivors of the 7 October Hamas-led terror attacks in Israel. 

This included former hostages and eyewitnesses “from six major attack locations: Kfar Aza, Holit, the venue of the Supernova Music Festival, Be’eri; Nir Oz and Nahal Oz”.

‘Unfathomable pain’

“It is the view of my Office that these individuals planned and instigated the commission of crimes on 7 October 2023 and have through their own actions, including personal visits to hostages shortly after their kidnapping, acknowledged their responsibility for those crimes,” Prosecutor Khan said.

“Speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness. These acts demand accountability,” he added.

Turning to the hostages still believed to be held in Gaza, the ICC official noted that his Office had interviewed victims and survivors and that this information along with other sources indicated that they had been kept in inhumane conditions with some subjected to sexual violence, including rape.

Survivors’ courage

“I wish to express my gratitude to the survivors and the families of victims of the 7 October attacks for their courage in coming forward to provide their accounts to my Office,” Prosecutor Khan said. “We remain focused on further deepening our investigations of all crimes committed as part of these attacks and will continue to work with all partners to ensure that justice is delivered.” 

On the issue of the liability of the top Israeli officials Mr. Netanyahu and Mr. Gallant, the ICC Prosecutor alleged “starvation as a method of war”.

This and other crimes against humanity were allegedly committed “as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy”.

To reinforce the allegations, Mr. Khan cited “interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements” which showed “that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival”.

Aid siege

Detailing the impact of “total siege” imposed by Israel on Gaza after 8 October 2023, the ICC request to judges explained that this involved “completely closing” the three border crossing points – Rafah, Kerem Shalom in the south and Erez in the north – “for extended periods and then by arbitrarily restricting the transfer of essential supplies – including food and medicine – through the border crossings after they were re-opened”.

Among other deprivations, the Israeli siege also cut off water and electricity pipelines to Gaza, the ICC Prosecutor continued, noting that Gazans also faced physical attacks when queuing for food while other “attacks on and killing of aid workers…forced many agencies to cease or limit their operations”.

The effects of this State policy were “acute, visible and widely known”, Mr. Khan said, noting the UN Secretary-General’s warning some two months ago that “1.1 million people in Gaza are facing catastrophic hunger – the highest number of people ever recorded anywhere, anytime” as a result of an “entirely man-made disaster”. 

Gravest offences

Although Israel has the right to defend itself under international law, Mr. Khan insisted that “intentionally causing death, starvation, great suffering” to civilians were clear breaches of the ICC’s foundational charter, signed in Rome in 2002. Israel is not a signatory to the Rome Statute while Palestine is.

“I have consistently emphasised that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale. I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences.”

No one is above the law

In addition to the request to judges to issue warrants, the ICC statement noted that it was pursuing “multiple and interconnected additional lines of inquiry” into crimes committed since 7 October.

These include further allegations of sexual violence during the Hamas-led terror attacks and widespread bombardment in Gaza “that has caused and continues to cause so many civilian deaths, injuries and suffering”.

“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,” Mr. Khan said, while also highlighting his concern over escalating violence in the West Bank.

“Nothing can justify wilfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.”

In a call to all parties in the Gaza conflict “to comply with the law now”, the ICC Prosecutor said his Office “will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met”.

Unlike the International Court of Justice (ICJ) – which is the UN’s principal judicial organ for settling disputes between countries – the ICC tries individuals. The ICC is a permanent court based in The Hague, unlike temporary tribunals such as those set up to try grave crimes committed in the former Yugoslavia and Rwanda.

According to ICC documentation, the court’s policy is to focus on those who “bear the greatest responsibility for the crimes” committed. No one is exempt from prosecution and there is no exemption for heads of State of Government.

The decision over whether to issue arrest warrants will be taken by the Pre-Trial Chambers, which must also confirm the alleged charges.

One an arrest warrant is issued and if the alleged perpetrator is arrested on the charges sought by the Prosecutor, a Trial Chamber is then created, headed by three judges.

Once the trial has ended, the judges “may impose a sentence of imprisonment for a specified number of years not exceeding a maximum of thirty years or life imprisonment”, the ICC said.