Why is the ICC seeking arrest warrants against the leaders of Israel and Hamas?
Roula Khalaf, Editor of the FT, selects her favourite stories in this weekly newsletter.
International Criminal Court prosecutor Karim Khan is seeking arrest warrants against leaders of both Israel and Hamas, the Palestinian militant group. The allegations stem from Hamas’s October 7 assault on the Jewish state and Israel’s retaliatory offensive in Gaza.
Khan’s targets are Benjamin Netanyahu, Israel’s prime minister, and defence minister Yoav Gallant, marking the first time an ICC prosecutor has gone after the leader of a western-backed state.
He has also sought warrants for Hamas’s leaders, including Ismail Haniyeh, the group’s political leader, Yahya Sinwar, its chief in Gaza, and military commander Mohammed Deif. The prosecutor said there are “reasonable grounds to believe” that the five have committed war crimes and crimes against humanity.
What allegations has the ICC prosecutor made?
Netanyahu and Gallant are accused of crimes including starvation of civilians as a method of warfare, wilful killing and the direction of attacks against civilian populations. They are also alleged to have committed “extermination and/or murder”, including in the context of starvation.
Khan wrote that the actions taken by Israel during its seven-month siege and offensive in Gaza “were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy”, and were still ongoing.
The prosecutor said Israel — like all states — had the right to defend its citizens, but that did not mean it was absolved from its obligations under international humanitarian law. Whatever Israel’s military goals, Khan wrote, “intentionally causing death, starvation, great suffering and serious injury to . . . the civilian population are criminal”.
The allegations against the three Hamas leaders include “extermination”, murder, torture, rape and other acts of sexual violence. They are also accused of hostage taking over their capture of some 250 Israelis and foreign nationals during the October 7 attack on southern Israel that triggered the war.
These crimes, Khan wrote in his report, “were part of a widespread and systematic attack” against Israeli civilians “pursuant to organisational policies” — with some still ongoing.
Both the Israeli government and Hamas condemned the prosecutor’s decision. Israeli Prime Minister Benjamin Netanyahu called it “absurd . . . and a distortion of reality”, and rejected “with disgust” the comparison between “democratic Israel and the mass murderers of Hamas”.
Hamas said it was “without a legal basis” and a “violation of the international conventions and resolutions” that gave those living under occupation “the right to resist the occupation in all forms”.
What is the ICC’s authority and how is this case different from the ongoing International Court of Justice proceedings?
The ICC was created in 2002 to investigate genocide, war crimes and crimes against humanity. The Rome Statute that underpins it has 124 signatories, spread across Africa, the Americas, Asia and Europe. But many of the world’s biggest and most powerful countries are not part of it. Non-members include the US, China, India, Russia and Israel. Qatar, where Hamas’s political leadership, including Haniyeh, is based, is also not a signatory.
The ICC case is separate from the one involving Israel at the International Court of Justice, where South Africa has lodged a case accusing the Jewish state of genocide. Both bodies are based in the Dutch city of The Hague, but the ICJ is a UN organisation and is not a criminal tribunal. Israel denies the claims that it has committed genocide.
Why does the ICC claim jurisdiction in this case?
The case has roots in 2015, when Palestinian authorities signed up for the court. The ICC’s then prosecutor Fatou Bensouda began examining possible crimes committed in the Palestinian territories. In 2019, Bensouda announced that she wanted to launch a full investigation. She asked a pre-trial chamber of judges to rule on whether the ICC had jurisdiction.
In February 2021, the judges ruled that the court had jurisdiction over alleged offences in Gaza and the occupied West Bank, including East Jerusalem. Bensouda launched the probe the following month and was succeeded by Khan, a British barrister, in June of that year. The October 7 attack and the Israeli military campaign in Gaza that followed are now at the centre of the long-running investigation.
The prosecutor is asserting jurisdiction over alleged crimes by Hamas officials, even though these took place in Israel. The court has authority to do this because the Hamas officials are Palestinian, according to a panel of international legal experts convened by the prosecutor. This means they come under the ICC’s purview because the Palestinian authorities signed up to the court, even though Israel has not.
Will the arrest warrants be approved and how would they be enforced?
The ICC judges will decide whether to approve the arrest warrants, or they could instead issue a summons to appear if they think that would suffice to make the suspects turn up. Historically, arrest warrant requests have rarely been denied — although this is the highest-profile and most politically explosive case to come before the court.
If an arrest warrant is issued, the court’s member states are supposed to execute it should the target travel to their territory — although that has not always happened in other ICC cases.
The time that the court takes to issue an arrest warrant after a request for one has been made can vary greatly, from a matter of weeks to many months.
The first arrest warrant against former Sudanese president Omar al-Bashir was issued more than seven months after the prosecutor’s July 2008 request. A second warrant requested in July 2009 took a full year to be issued.
The case of Russia’s President Vladimir Putin over the alleged illegal deportation of children from Ukraine unfolded much more quickly. A warrant for his arrest was issued in March 2023, less than four weeks after the prosecutor requested it.
What is the court’s record on arresting and prosecuting in other cases?
The court has faced criticism over the number of convictions it has secured and its focus on conflicts in Africa. It has taken on 31 cases — some with more than one suspect — and issued 46 arrest warrants and nine summonses, according to its website. While 21 people have appeared before the court, another 17 are at large. Charges have been dropped against seven others because they have died.
The court has issued 10 convictions and four acquittals, the website says. Most of the convictions relate to conflict in the Democratic Republic of Congo, while one concerns Mali, which is the first case in which a defendant admitted guilt.
Comments