ICC Prosecutor Seeks Arrest Warrants For Hamas And Israeli Leaders
(ANALYSIS) On May 20, the International Criminal Court (ICC) prosecutor Karim A.A. Khan filed applications for warrants of arrest before Pre-Trial Chamber I of ICC in the “Situation in the State of Palestine.”
This follows the March 2021 opening of the investigation into the situation in the state of Palestine and a statement from Oct. 10, 2023, to confirm that the recent escalation of the situation is within the mandate of the ICC.
When announcing the step, Khan emphasized 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. Nothing can justify willfully 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.”
The ICC prosecutor applied for five arrest warrants, against Yahya Sinwar, Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip; Mohammed Diab Ibrahim Al-Masri, more commonly known as Deif, commander-in-chief of the military wing of Hamas known as the Al-Qassam Brigades; Ismail Haniyeh, head of Hamas Political Bureau; Benjamin Netanyahu, the prime minister of Israel; and Yoav Gallant, the minister of Defense of Israel.
As the ICC prosecutor indicated in his statement, on the basis of evidence collected and examined by his office, he has reasonable grounds to believe that Yahya Sinwar Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of Israel and the state of Palestine (in the Gaza strip) from at least Oct. 7, 2023: Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute; murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i); taking hostages as a war crime, contrary to article 8(2)(c)(iii); rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity; torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity; other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity; cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.
As the Office of the Prosecutor submitted, the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a noninternational armed conflict between Israel and Hamas running in parallel.
The OTP further submitted 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 are said to continue to this day.
The OTP has interviewed victims and survivors, including former hostages and eyewitnesses from six major attack locations: Kfar Aza; Holit; the location of the Supernova Music Festival; Be’eri; Nir Oz; and Nahal Oz. The investigation also relied on evidence such as CCTV footage, authenticated audio, photo and video material, statements by Hamas members including the alleged perpetrators, and expert evidence.
As the ICC prosecutor indicated, “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. We submit that these crimes could not have been committed without their actions. They are charged both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.”
He further added: “During my own visit to Kibbutz Be’eri and Kibbutz Kfar Aza, as well as to the site of Supernova Music Festival in Re’im, I saw the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today. 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.”
The OTP submitted that there are reasonable grounds to believe that hostages taken from Israel have been kept in inhumane conditions and that some have been subject to sexual violence, including rape while being held in captivity. They have reached that conclusion based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors. The OTP also continues to investigate reports of sexual violence committed on Oct. 7, 2023.
The ICC prosecutor further indicated that on the basis of evidence collected and examined by his office, he has reasonable grounds to believe that Benjamin Netanyahu and Yoav Gallant bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the state of Palestine (in the Gaza strip) from at least Oct. 8, 2023, starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the statute; willfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i); willful killing contrary to article 8(2)(a)(i), or murder as a war crime contrary to article 8(2)(c)(i); intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i); extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity; persecution as a crime against humanity contrary to article 7(1)(h); other inhumane acts as crimes against humanity contrary to article 7(1)(k).
The OTP submitted that the evidence it has 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.
As the ICC prosecutor commented, “This occurred through the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods and then by arbitrarily restricting the transfer of essential supplies — including food and medicine — through the border crossings after they were reopened.
The siege also included cutting off cross-border water pipelines from Israel to Gaza – Gazans’ principal source of clean water — for a prolonged period beginning Oct. 9, 2023, and cutting off and hindering electricity supplies from at least October 8, 2023, until today. This took place alongside other attacks on civilians, including those queuing for food; obstruction of aid delivery by humanitarian agencies; and attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza.” He further added that “The effects of the use of starvation as a method of warfare, together with other attacks and collective punishment against the civilian population of Gaza are acute, visible and widely known, and have been confirmed by multiple witnesses interviewed by my Office, including local and international medical doctors. They include malnutrition, dehydration, profound suffering and an increasing number of deaths among the Palestinian population, including babies, other children, and women.”
Khan made it clear that “Israel, like all States, has a right to take action to defend its population.” However, as he added, “That right ... does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.”
The ICC prosecutor indicated that the applications for arrest warrants are the outcome of an independent and impartial investigation by his office. The ICC prosecutor was further assisted by a panel of experts in international law including Sir Adrian Fulford, former Lord Justice of Appeal and former International Criminal Court judge; Baroness Helena Kennedy, director of the International Bar Association’s Human Rights Institute; Elizabeth Wilmshurst, former deputy legal adviser at the U.K. Foreign and Commonwealth Office; Danny Friedman; and two special advisers — Amal Clooney and Judge Theodor Meron.
The panel issued a report indicating that it unanimously agreed with the ICC prosecutor that the applications for arrest warrants, and material submitted by the ICC prosecutor in support of each application, demonstrate reasonable grounds to believe that the ICC has jurisdiction over the crimes set out in the applications, that these crimes were committed and that the suspects are responsible for them.
The panel further indicated that it is satisfied that the process was fair, rigorous and independent and that the ICC prosecutor’s applications for arrest warrants are grounded in the law and the facts.
The judges of the ICC will now consider and decide as to whether the necessary standard for the issuance of warrants of arrest has been met.
This piece was republished from Forbes with permission.
Dr. Ewelina U. Ochab is a human rights advocate, author and co-founder of the Coalition for Genocide Response. She’s authored the book “Never Again: Legal Responses to a Broken Promise in the Middle East” and more than 30 UN reports. She works on the topic of genocide and persecution of ethnic and religious minorities around the world. She is on X @EwelinaUO.