ICC issues arrest warrants for Israel’s Benjamin Netanyahu and Yoav Gallant

The International Criminal Court (ICC) on Thursday issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant, six months after chief prosecutor Karim Khan requested them.

It is the first instance in the court’s 22-year history it has issued arrest warrants for western-allied senior officials.

The Hague-based court also issued a warrant for Mohammed Diab Ibrahim al-Masri, the Hamas military chief better known as Mohammed Deif, despite Israeli claims that he was killed in Gaza.

The Israelis and Deif are accused of a range of war crimes and crimes against humanity over atrocities committed since 7 October last year.

In its statement, the ICC’s Pre-Trial Chamber I, a panel of three judges, said it has rejected appeals by Israel challenging its jurisdiction.

The chamber said the arrest warrants are classified as “secret” but that it has decided to release them because “conduct similar to that addressed in the warrant of arrest appears to be ongoing”, referring to Israel’s ongoing onslaught on Gaza and the continued detention of Israeli captives by Hamas.

“Moreover, the chamber considers it to be in the interest of victims and their families that they are made aware of the warrants’ existence,” it said.

Triestino Mariniello, a lawyer representing Palestinian victims at the ICC, called the warrants “a historic decision”.

He noted that the court had endured “pressure and threats of sanctions” from the US government, but acted nonetheless.

“That’s an important step for its legitimacy and credibility,” he told Middle East Eye. “It’s important for Palestinian victims. It’s a historic day for anyone who believes in justice for every victim independently of the power of the culprits.”

Professor Leila Nadya Sadat, who previously served as the ICC’s special adviser on crimes against humanity, welcomed Thursday’s decision as long overdue.

“The referral dates back several years already, with new State referrals having been added over the course of the past year, and it was important for the Prosecutor to investigate and for the Court to issue the warrants if the evidence supported them,” Sadat, who is a professor of international criminal law at Washington University School of Law, told Middle East Eye.

Khan announced on 20 May that the prosecutor’s office had filed an application for arrest warrants for Netanyahu and Gallant, as well as Hamas leaders Yahya Sinwar, Ismail Haniyeh and Deif.

Haniyeh, the head of Hamas’ political wing, was assassinated in Iran on 31 July, and Israel said in August that it killed Deif, a claim denied by Hamas.

The prosecutor subsequently withdrew Haniyeh’s arrest warrant. Sinwar, Haniyeh’s successor, was killed in Gaza in October, as confirmed by Hamas.

“It is deeply unfortunate that two of the Hamas indictees were executed by Israel rather than turned over to the Court, depriving victims of the possibility of seeing them tried for the acts of 7 October,” Sadat said.

“It is appropriate, in my view, that the warrants targeted the Prime Minister and the Defense Minister of Israel, as opposed to individuals of lower rank, given the scale of the crimes alleged to have been committed, and the significant death and injury tolls arising from them, as well as the ongoing humanitarian crisis and impending starvation.”

Earlier this week, UN special rapporteur on Palestine Francesca Albanese told Middle East Eye that the ICC should seek warrants for more Israeli leaders.

Khan’s request was part of a war crimes investigations on the situation in Palestine, launched in 2021 by his predecessor.

Israel is not a member of the ICC, but the State of Palestine was granted membership in 2015. Accordingly, the court can investigate Israeli individuals for crimes committed in occupied Palestine, which includes the Gaza Strip, the West Bank and East Jerusalem.

All 124 states that ratified the Rome Statute, the treaty that established the court, are now under an obligation to arrest the wanted individuals and hand them over to the ICC in the Hague. A trial cannot commence in absentia.

However, the court does not have enforcement powers. It relies on the cooperation of member states to arrest and surrender suspects. France and the Netherlands said they were prepared to enforce the warrants.

Joseph Borrell, the EU’s foreign policy chief, said the ICC’s decision is binding on all EU member states, since they are all members of the court’s statute.

When approached by MEE for comment, the UK government refused to say whether it will implement the warrants.

Israeli officials and opposition politicians were unanimous in their condemnation of the ruling. President Isaac Herzog called the decision “outrageous”, saying “the ICC has turned universal justice into a universal laughing stock”.

Hamas called on the ICC “to expand the scope of accountability to all criminal occupation leaders”.

What crimes are Netanyahu and Gallant accused of?

The judges said they found “reasonable grounds” for the allegations that Netnayahu, Galland and Deif have breached international humanitarian law as stipulated the 1949 Geneva Conventions, to which both Israel and Palestine are parties.

War crimes are committed in the context of international or non-international armed conflicts, while crimes against humanity might be perpetrated during war or peacetime.

The chamber described the situation in Palestine and Israel as both an international armed conflict between Israel and Palestine as two states, and a non-international armed conflict between Israel and Hamas as a non-state actor.

“The chamber found that the alleged conduct of Mr Netanyahu and Mr Gallant concerned the activities of Israeli government bodies and the armed forces against the civilian population in Palestine, more specifically civilians in Gaza,” it said.

“It therefore concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory,” it added.

The court said that there are reasonable grounds to believe that Netanyahu and Gallant “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024”.

“This finding is based on the role of Mr Netanyahu and Mr Gallant in impeding humanitarian aid in violation of international humanitarian law and their failure to facilitate relief by all means at its disposal.”

The judges added that the restrictions on aid, in addition to cutting off electricity and reducing fuel supply, had a “severe impact” on the supply of water in Gaza and the capacity of hospitals to provide urgent care.

When Israel allowed humanitarian aid to enter Gaza, it was done in a manner that was insufficient to meet Israel’s international legal obligations to ensure the supply of goods to the population of the occupied enclave.

“The chamber therefore found reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare,” the court said.

It added that Israelis are charged with the crimes against humanity of murder and persecution.

Sarit Michaeli, of Israel’s largest human rights group B’Tselem, called on member states of the ICC to make clear statements affirming they will enforce the warrants.

“States should protect and shield the ICC from any recriminations or threats,” she told MEE.

What are the charges against Deif?

Deif, the commander of Hamas’ al-Qassam Brigades armed wing, is charged with the crime against humanity and the war crime of murder, over the the mass killing of civilians during the Hamas-led attack on southern Israel on 7 October 2023.

The judges referred to the attack on the site of the Supernova music festival and surrounding communities of Kfar Aza, Holit, Nir Oz, Beeri and Nahal Oz.

The court cited targeted and “coordinated” killings of civilians at seperate locations on 7 October as sufficient to conclude that the crime against humanity of extermination.

Additionally, the chamber accused Deif of the war crime of hostage taking, over the abduction of some 250 Israeli civilians, including children and elderly people. Around 100 Israelis remain in Hamas captivity.

Hamas said that the hostage taking was carried out with the aim of negotiating the release of Palestinian prisoners held in Israeli jails.

Finally, the chamber found reasonable grounds to believe that the crimes of torture, rape and other forms of sexual violence, cruel treatment, and outrages upon personal dignity were committed against Israeli captives.

Also read