ICC prosecutor seeks arrest warrants against Netanyahu, Gallant, and 3 Hamas leaders

By Annette Gartland on May 20, 2024

Prosecutor at the International Criminal Court Karim A.A. Khan is seeking arrest warrants against the Israeli Prime Minister, Benjamin Netanyahu, Israel’s Defence Minister, Yoav Gallant, and Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif), and Ismail Haniyeh.

Khan said today that he was filing the applications for warrants of arrest “before Pre-Trial Chamber I of the International Criminal Court in the Situation in the State of Palestine”.

The judges of the ICC will ultimately determine which warrants, if any, should be issued.

Khan said that, on the basis of evidence collected and examined by his office, he had reasonable grounds to believe that Netanyahu and 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 8 October 2023”:

starvation of civilians as a method of warfare as a war crime;
wilfully causing great suffering, or serious injury to body or health, or cruel treatment as a war crime;
wilful killing, or murder as a war crime;
intentionally directing attacks against a civilian population as a war crime;
extermination and/or murder, including in the context of deaths caused by starvation, as a crime against humanity;
persecution as a crime against humanity; and
other inhumane acts as crimes against humanity.

Khan said his office submitted that the war crimes alleged in the 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 (together with other Palestinian Armed Groups) running in parallel.

“We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy,” he said. “These crimes, in our assessment, continue to this day.”

Khan said his office submitted that the evidence they had collected, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group, showed that Israel had “intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival”.

This, Khan said, 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 9 October, 2023, and cutting off and hindering electricity supplies from at least 8 October 2023 until today,” Khan added.

“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.”

Khan said his office submitted that these acts were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population “as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel”.

He said 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, were “acute, visible and widely known”, and had been confirmed by multiple witnesses interviewed by his 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 said.

Famine, Khan said, was present in some areas of Gaza and was imminent in other areas.

Khan quoted the UN secretary-general, António Guterres, who had warned more than 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 manmade disaster”.

Today, Khan said, his office sought to charge two of those most responsible, Netanyahu and Gallant, both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.

Israel, like all States, had a right to take action to defend its population, Khan said.

“That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law,” he added.

“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.”

Khan added: “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, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.”

Charges against Hamas leaders

Khan said that, on the basis of evidence collected and examined by his office, he had reasonable grounds to believe that the head of the Islamic Resistance Movement Hamas in the Gaza Strip, Yahya Sinwar; the commander-in-chief of the military wing of Hamas, known as the Al-Qassam Brigades, Mohammed Diab Ibrahim Al-Masri, more commonly known as Deif; and the head of Hamas’ political bureau, Ismail Haniyeh, bore 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 7 October, 2023:

extermination as a crime against humanity;
murder as a crime against humanity;
taking hostages as a war crime;
rape and other acts of sexual violence as crimes against humanity, and also as war crimes in the context of captivity;
torture as a crime against humanity, and also as a war crime, in the context of captivity;
other inhumane acts as a crime against humanity, in the context of captivity;
cruel treatment as a war crime, in the context of captivity; and
outrages upon personal dignity as a war crime, in the context of captivity.

“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 organisational policies,” he said. “Some of these crimes, in our assessment, continue to this day.”

Khan said his office submitted that there were reasonable grounds to believe that Sinwar, Deif, and Haniyeh were criminally responsible for the killing of hundreds of Israeli civilians in attacks perpetrated by Hamas (in particular its military wing, the Al-Qassam Brigades) and other armed groups on 7 October, 2023, and the taking of at least 245 hostages.

“As part of our investigations, my office 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,” Khan said.

“The investigation also relies on evidence such as CCTV footage, authenticated audio, photo and video material, statements by Hamas members including the alleged perpetrators named above, and expert evidence.”

Khan said it was the view of his office that Sinwar, Deif, and Haniyeh planned and instigated the commission of crimes on 7 October 2023, and had, 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,” Khan said. “They are charged both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.”

Khan said that, during his own visit to Kibbutz Be’eri and Kibbutz Kfar Aza, as well as to the site of Supernova Music Festival in Re’im, he saw “the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today”.

He added: “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.”

Khan said his office also submitted there were reasonable grounds to believe that hostages taken from Israel had been kept in inhumane conditions, and that some had been subject to sexual violence, including rape, while being held in captivity.

“We have reached that conclusion based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors,” Khan said. “My office also continues to investigate reports of sexual violence committed on 7 October.”

Khan said he wished to express his gratitude to the survivors and the families of victims of the October 7 attacks for their courage in coming forward to provide their accounts to his office.

“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,” Khan said.

“I again reiterate my call for the immediate release of all hostages taken from Israel and for their safe return to their families. This is a fundamental requirement of international humanitarian law.”

Karim Khan

Khan said he was also grateful for the advice of a panel of experts in international law.

The panel said in the conclusion of its report that it unanimously agreed with the prosecutor that the applications for arrest warrants, and material submitted by the prosecutor in support of each application, demonstrated reasonable grounds to believe that the ICC had jurisdiction over the crimes set out in the applications for arrest warrants, that these crimes were committed, and that the suspects were responsible for them.

The six panel members (Lord Justice Fulford, Judge Theodor Meron, Amal Clooney, Danny Friedman, Baroness Helena Kennedy, and Elizabeth Wilmshurst), who were supported by two academic advisers, wrote in an opinion piece in the Financial Times: “The Panel unanimously agrees with the prosecutor’s conclusion that there are reasonable grounds to believe that three of Hamas’s most senior leaders – Yahya Sinwar, Mohammed Deif and Ismail Haniyeh – have committed war crimes and crimes against humanity for the killing of hundreds of civilians, the taking of at least 245 hostages and acts of sexual violence committed against Israeli hostages.

“The Panel also unanimously agrees that the evidence presented by the prosecutor provides reasonable grounds to believe that Netanyahu and Israel’s minister of defence Yoav Gallant have committed war crimes and crimes against humanity. This includes the war crime of intentionally using starvation of civilians as a method of warfare and the murder and persecution of Palestinians as crimes against humanity.”

Israel’s President Isaac Herzog tweeted that the announcement of the prosecutor at the ICC was “beyond outrageous”.

Herzog said the announcement showed “the extent to which the international judicial system is in danger of collapsing”.

Reuters quoted Hamas spokesman Sami Abu Zuhri as saying Khan’s application for warrants against Hamas leaders “equates the victim with the executioner”.

Palestinian-Canadian lawyer Diana Buttu, who is a former spokeswoman for the Palestine Liberation Organisation, told Al Jazeera: “If this court is to have any credibility it should be going after the people who are committing genocide rather than just simply trying to play this game of bothsidesism.”

The United States’ president, Joe Biden, said: “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. 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.”

The US Secretary of State, Antony Blinken, said the US fundamentally rejected Khan’s announcement.

“We reject the prosecutor’s equivalence of Israel with Hamas,” Blinken said. “It is shameful. Hamas is a brutal terrorist organisation that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans.”

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Netanyahu said Khan’s decision to seek arrest warrants “against the democratically elected leaders of Israel” was a “moral outrage of historic proportions”.

He said the decision would cast “an everlasting mark of shame on the international court”.

The Israeli prime minister attacked Khan personally, saying he was one of the “great antisemites in modern times”.

Netanyahu said the ICC had no jurisdiction over Israel and Khan’s actions would not stop Israel from waging what Netanyahu called its “just war against Hamas”.

Khan was “callously pouring gasoline on the fires of antisemitism that are raging across the world”, Netanyahu said.

Among the numerous threads on X (Twitter) about Khan’s announcement is one by reader in public law and author Nimer Sultany, in which he notes that the assessment of the conflict between Hamas/Palestine and Israel in Khan’s announcement makes no mention of Israel’s occupation of Palestine.

Sultany tweeted: “Although there is an obvious urgency from crimes since October, the ICC Prosecutor says nothing regarding the ongoing and pre-October allegations against Israeli leaders with respect to settlements and apartheid.”

He does note, however, that the expert panel does mention the occupation in its report.

Sultany also noted that the charges of torture, cruel treatment as a war crime, and outrages upon personal dignity, in the context of captivity, were being levelled against Hamas, but not against Israel.

He said this was surprising, given Israel’s treatment of thousands of Palestinian detainees and prisoners, including more than 27 who died in custody.

The head of the legal department at Euro-Med Human Rights Monitor, Lima Bustami, also refers in a Twitter thread to the omission of the element of occupation in Khan’s statement.

She cites three instances:

starting the timeline on October 7;
“failing to distinguish between Hamas’ actions as a resistance movement and the alleged crimes they committed that day”, which, Bustami says, conflates all actions of that day as criminal acts; and
characterising the conflict between Hamas and Israel as a non-international conflict.

The conflict, Bustami says, is connected to the occupation of Palestine, “which should classify conflicts related to it under international law”.

Bustami said in conclusion that “ … while this request represents progress toward accountability, a more balanced & historically contextualized approach is essential for comprehensive justice. More indictments & warrants must follow to account for the full scale of Israeli crimes.”