New Delhi: Seven months into the war in Gaza, the International Criminal Court’s (ICC) prosecutor is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defence Minister Yoav Gallant, and three Hamas leaders for war crimes.
The ICC is an international tribunal seated in The Hague, Netherlands, which, when warranted, tries individuals charged with the gravest crimes of concern. The court’s announcement about the warrants came just hours after Iran President Ebrahim Raisi and Foreign Minister Hossein Amirabdollahian died in a fatal helicopter crash.
“Today I am filing applications for warrants of arrest before Pre-Trial Chamber I of the International Criminal Court in the situation in the state of Palestine. These applications are the outcome of independent investigations conducted by my office…,” ICC Prosecutor Karim A.A. Khan said in a statement Monday.
Both Israel and Hamas have been accused of war crimes and crimes against humanity over the 7 October attacks on Israel and the subsequent war in Gaza.
While three Hamas leaders have been accused of rape, murder, taking of hostages and other crimes, Israel’s top leadership has been accused of starvation of civilians as a method of warfare, intentionally directing attacks against a civilian population and other “inhumane” crimes.
The charges of hostage taking and killing are “likely to stand” against Hamas but not others while all charges against Israeli leaders are “likely to stick”, according to Balakrishnan Rajagopal, United Nations Special Rapporteur on the right to adequate housing.
On the request by the ICC Prosecutor for warrants: against Hamas, the charges of hostage taking and killing likely to stand but not others. Against Israeli leaders, all charges likely to stick. And missing charges include attacks against various civilian objects including homes!
— UN Special Rapporteur on the right to housing (@adequatehousing) May 20, 2024
The ICC Prosecutor’s request for warrants must be approved by judges from the court. A Pre-Trial Chamber of the court usually consists of three judges.
In a post on X, Oren Marmorstein, spokesperson for Ministry of Foreign Affairs of Israel, called the prosecutor’s request “morally twisted”.
“The decision made today by the Prosecutor of the International Criminal Court (ICC) Karim Khan is absurdity incarnate: he asks to equate the attackers and the attacked. This is folly of the highest order; there has never been anything like it.”
“Prosecutor Khan’s accusations are baseless, unfounded, distort international law, trample the rules of the court itself, and harm every democratic country that defends itself and fights terrorism,” he added.
The decision made today by the Prosecutor of the International Criminal Court (ICC) Karim Khan is absurdity incarnate: he asks to equate the attackers and the attacked.
This is folly of the highest order; there has never been anything like it.
Prosecutor Khan decision is… pic.twitter.com/6klQeDbkwe
— Oren Marmorstein (@OrenMarmorstein) May 20, 2024
Meanwhile, Hamas too, in a statement, has “strongly condemned” the action.
The 124 countries that have joined the ICC are under a legal obligation to enforce the court’s warrants, if issued. However, Israel and the US are not members of the ICC. That said, the international court has claimed to have jurisdiction over Gaza, East Jerusalem and the West Bank.
This was after April 2015, when Palestinian Authority President Mahmoud Abbas officially signed the Rome Statute — the treaty that established the court — and allowed Palestinians to formally joined the ICC.
At the time, Netanyahu criticised the move arguing that the Palestinian Authority was in “unity” with Hamas which it views as a “terror” state. The US had also condemned the move, calling it “deeply troubling”.
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What crimes has Hamas & Israel been accused of?
The ICC prosecutor has named Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif) and Ismail Haniyeh — top leaders from Iran-backed Hamas — responsible for eight war crimes that allegedly violate articles of the Rome Statute.
Sinwar, believed to be the architect of the 7 October attacks, is Hamas’ most senior official based in Gaza. Al-Masri is the head of the Izz ad-Din al-Qassam Brigades, the military wing of Hamas. Haniyeh is the chairman of Hamas’s political bureau, based in Qatar.
The alleged charges against the three men include extermination, murder as a crime against humanity, taking hostages, rape and other acts of sexual violence, torture and cruel treatment.
On the issue of sexual violence, the ICC Prosecutor stated: “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.”
Khan adds that his team reached that conclusion based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors.
Meanwhile, Israel’s Prime Minister and Defence Minister have been accused of breaking international law based on actions in the Gaza strip from “at least” 8 October, 2023.
The two senior Israeli ministers have been accused of starvation of civilians as a method of warfare; willfully causing great suffering, or serious injury to body or health; intentionally directing attacks against a civilian population; extermination and/or murder; persecution and other inhumane acts contrary to article 7(1)(k) of the Rome Statute.
“Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival,” Khan said in his statement, adding that this occurred via a “total siege over Gaza” and the closing of three border crossing points, Rafah, Kerem Shalom and Erez.
The Rafah border crossing, the last land route out of Gaza, was open until early May when Israeli Defence Forces began an operation there and closed off the border.
(This is an updated version of the story)