What does the ICC application for arrest warrants mean for Israeli and Hamas leaders?
By Marisa Were/GICJ
“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. Nothing can justify wilfully depriving human beings, including so many women and children, of the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.” - part of the statement from ICC Prosecutor Karim A.A. Khan (20 May 2024).
Israel’s war on Gaza has had devastating effects on Palestinians. The right of States to act in self-defence does not absolve Israel of its obligation to comply with International Humanitarian Law (IHL). Israel’s military goals in this war have been achieved through intentional murder, starvation, suffering, and severe injury to the body and health of Palestinians in Gaza since 8 October 2023. These actions ultimately warrant the labelling of the leaders of the State of Israel as perpetrators of international crimes.
On 20 May 2024, the International Criminal Court (ICC) Prosecutor Karim A.A. Khan, based on evidence collected and examined by his Office, applied for an arrest warrant for Hamas and Israeli leaders for war crimes and crimes against humanity. The arrest warrants for Hamas leaders are for Yahya Sinwar (Head of the Islamic Resistance Movement (Hamas) in the Gaza Strip), Mohammed Diab Ibrahim Al-Masri – commonly known as Deif (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Bridges), and Ismail Haniyeh (Head of Hamas Political Bureau) for crimes committed since 7 October 2023. The arrest warrants for Israeli leaders are for Benjamin Netanyahu (Prime Minister of Israel) and Yoav Gallant (Minister of Defence of Israel) for crimes committed since 8 October 2023.
The ICC and Palestine
The purpose of the ICC is to investigate and, where warranted, trail individuals charged with the most pressing crimes of concern to the international community, such as genocide, war crimes, and crimes against humanity. It is founded on the Rome Statute, an international treaty establishing the ICC’s governing framework and an international treaty that aims to hold those who have committed mass acts of inhumanity accountable. The ICC is separate from the International Court of Justice (ICJ), which has overseen South Africa’s successful application for provisional measures against Israel over its genocide against the Palestinians and continues to adjudicate the merits of that case in preparation for its final determination.
The Charges on Israeli Leaders
Prosecutor Khan stated that there are ‘reasonable grounds’ to believe that Netanyahu and Gallant are criminally responsible for the starvation of civilians as a method of warfare, wilfully causing great suffering or serious injury, wilful killing, intentionally directed attacks against a civilian population, extermination, and persecution. The Office submitted that the war crimes alleged were committed in the context of an international armed conflict between Israel and Hamas.
The evidence collected for these charges came from interviews of survivors and eyewitnesses, authenticated video, photo, and audio material, satellite imagery and statements from the alleged perpetrators, which showed that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of basic human necessities. This occurred through the imposition of a total siege over Gaza that involved completely closing three border points, Rafah, Kerem Shalom, and Erez, since 8 October 2023. The blockade also included the cutting off cross-border water pipelines from Israel to Gaza – the territory’s principal source of clean water – for a prolonged period since 9 October 2023 and cutting off and hindering electricity supplies since 8 October 2023. These sieges all took place alongside other attacks on civilians, including attacks on those queuing for food, the obstruction of aid delivery by humanitarian agencies, and attacks on and killing of aid workers, which ended up forcing many international organisations to halt or limit operations in Gaza further exacerbating the inhumane situations the Palestinians were facing.
The Charges on Hamas Leaders
Prosecutor Khan stated that there are ‘reasonable grounds’ to believe that Sinwar, Deif, and Haniyeh are criminally responsible for extermination, murder, taking hostages, rape and other acts of sexual violence, torture, and cruel treatment committed on the territory of Israel and the State of Palestine (in the Gaza Strip). Khan’s Office submitted that the war crimes alleged in the application were committed in the context of an international armed conflict between Israel and Palestine and a non-international armed conflict between Israel and Hamas. The charges concerning the crimes against humanity are said to be part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups under organisational policies.
Furthermore, the application mentioned that Sinwar, Deif, and Haniyeh are criminally responsible for killing hundreds of Israeli civilians in attacks perpetrated by Hamas, in particular the Al-Qassam Bridges and other armed groups, on 7 October 2023, and for the taking of at least 245 hostages. As part of the investigation done by the Office, the evidence to support the application against Hamas leaders came from interviewing victims and survivors, which included former hostages and eyewitnesses from six central attack locations: Kfar Aza, Holit, Be’eri, Nir Oz, and Nahal Oz. The investigation’s evidence also relied on CCTV footage, authenticated audio, photo and video material, and statements by Hamas members. In addition, the Office submitted that there was reasonable ground to believe that hostages taken from Israel were kept in inhumane conditions and that some experienced sexual violence. This conclusion was reached based on medical records, contemporary video, and documentary evidence.
What this Means and Next Steps
The warrants mark a new phase in Israel’s diplomatic and political isolation, straining Western ties and legitimising arguments of Israeli criminality, which may lead to more divestments and sanctions against the occupying power.
We should note that Prosecutor Khan merely announced that he and his Office had applied for arrest warrants, so the next step will be for three independent ICC judges to assess the application's validity. There is no deadline for judges to decide; in previous cases, judges have taken anywhere from just over a month to several months to reach a decision. However, with the amount of evidence for the charges against both leaders, there is no reason to suggest that the applications will fail. For example, the prosecutor charged Netanyahu and Gallant with crimes, including the war crime of starvation, which investigators do not need physical access to the Gaza strip to prove, given the extensive cross-border activity and the accounts of international organisations operating on the ground that signal this crime.
Once the warrant is approved, it will name the person and their specific crimes and state the facts alleged to constitute those crimes, making it easier to have the men charged brought in. Essentially, the approval of the arrest warrants will make it difficult for the Israeli and Hamas leaders to travel abroad to the 124 countries that are signatories to the Rome Statute. This ICC does not have a police force; it relies on the State Parties under the Rome Statute to apprehend criminals if they step foot within their borders, which does not guarantee an arrest. As the ICC does not permit trials in absentia, if arrested, they will have to be brought to the Netherlands to stand the official trial.
Historically, this application is the first-ever ICC arrest warrant for Western leaders. Approved arrest warrants would make Netanyahu and Gallant unable to travel smoothly to 124 countries, an experience that will be new to them. At the same time, Sinwar, Deif, and Haniyeh, who the West has already blacklisted, will be unaffected.
Israel and Allies Reactions and Opinions
President Joe Biden of the United States of America, a continuous ally to Israel throughout the war on Gaza, essentially denounced Prosecutor Khans’ arrest warrant application as outrageous. He then stated, “And let me be clear: whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security”. Such sentiments from Israel’s prominent supporters are nothing new and unexpected. However, the ICC made it clear that both Israeli and Hamas leaders were being charged with war crimes and crimes against humanity. Israel has wilfully and intentionally committed crimes against humanity against the Palestinian people since 8 October 2023 and long before through its decade-long occupation. The ICC prosecutor’s Office hopes that the judges and State Parties will assist in carrying out long-overdue justice without giving in to threats and political pressure on the investigation.
Netanyahu, for his part, stated the arrest was absurd, noting, “With what audacity, do you dare compare the monsters of Hamas to the soldiers of the IDF, the most moral army in the world? With what audacity do you compare between the Hamas that murdered, burned, butchered, raped, and kidnapped our brothers and sisters and the IDF soldiers who are fighting a just war that is unparalleled in morality that is unmatched.”
Such statements from the Israeli Prime Minister are unsurprising. However, they speak to the grave ignorance with which this military campaign and the broader occupation itself have been carried out. Israel has repeatedly and demonstrably committed crimes against humanity against the Palestinian people. To claim that its forces constitute “the most moral army in the world” is laughable, especially when numerous reports of wanton killings, sexual violence, and rape against civilians by troops have surfaced. Though faced with the possibility of being put on trial and arrested for war crimes and crimes against humanity, the Prime Minister of Israel was more concerned with the idea that the ICC would include his actions of being at the same level as Hamas, the group he claims to be fighting, while causing the mass massacre and genocide of Palestinians every day since 8 October 2023.
Geneva International Centre for Justice (GICJ) supports the Chief Prosecutor’s Office at the International Criminal Court as it aims to uphold International Humanitarian Law and remind the international community that no individual or State should be above the law. War crimes and crimes against humanity have been committed, and those responsible should be held accountable. However, GICJ notes that the mention of genocide has been exempt from the arrest warrants and urges the international community not to forget that the very existence and livelihoods of Palestinians are severely under threat daily. The news of the arrest warrants is nonetheless a step forward towards achieving a level of justice. GICJ hopes efforts towards realising the safety and liberation of the Palestinian people continue, including an end to the illegal occupation of the Palestinian territories.
