BREAKING: ICC Seeks Arrest Warrants for Israeli & Hamas Leadership

What are the charges, who is being charged, and what happens next? Your quick but detailed summary of the ICC Charges against Israel and Hamas.

After months of warning, today the International Criminal Court Chief Prosecutor Karim Khan announced he is seeking arrest warrants for five members of Israeli and Hamas leadership. Throughout his remarks, Khan called for an immediate release of all hostages in Hamas custody and an immediate cessation of Israeli bombing and blockades, and instead an infusion of aid to stop the famine engulfing Gaza.

The ICC is targeting three Hamas leaders. Regarding Hamas leadership the ICC is seeking arrest warrants for Yahya Sinwar (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim Al-Masri, more commonly known as Deif (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail Haniyeh (Head of Hamas Political Bureau), for violation of the following criminal statutes from at least 7 October 2023: 

• Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;

• Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);

• Taking hostages as a war crime, contrary to article 8(2)(c)(iii);

• Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;

• Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;

• Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;

• Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and

• Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

The ICC is targeting two Israeli leaders. The ICC is likewise seeking arrest warrants for Israeli Prime Minister Netanyahu and Defense Minister Gallant 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 contrary to article 8(2)(b)(xxv) of the Statute;

• Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);

• Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);

• Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);

• Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;

• Persecution as a crime against humanity contrary to article 7(1)(h);

• Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

What about the right to self defense? Prosecutor Khan further made clear that his prosecution is not to undermine the right to self defense, a right that Israel maintains and shall always maintain. His prosecution targets the deliberate acts Israel took beyond self defense to engage in war crimes:

Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. 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. As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come.‬

So are the warrants issued now? Not quite. ICC Prosecutor Karim Khan can only apply for the warrants on the basis of sound evidence, and now he has. Khan concluded by calling for the judges of the ICC to make their determination and issue the warrants sought, so Khan can make arrests accordingly:

The judges of the international criminal court must be now given the space to do their work and to dispassionately and objectively review the evidence that we have submitted. Should the Learned judges approve my applications and issue the requested warrants I will work closely with the register of the court to apprehend the named individuals. I call upon and count on all states especially State parties to the Rome statute to approach this application and the subsequent judicial decision that will be rendered with the same seriousness they have shown in other situations.

But Israel and the United States reject ICC authority, so how can Netanyahu be held accountable? It is correct that Israel and the USA reject ICC authority, but ICC prosecution for violation of international law is critical none-the-less for at least three reasons.

First, it upholds a consistent standard of accountability on a global scale, and ensures no one is above the law. It isolates bad actors on a global scale for their criminal behavior, and sends a message that such war crimes will face global scrutiny.

Next, it breaks new ground. The previous three ICC prosecutors refused to charge Israel for past violations of international law, including building illegal settlements, violating obligations of a military occupying a foreign state, and torturing and killing civilians in Israeli prisons. Prosecutor Khan has courageously crossed that red line that no previous prosecutor dared to do, and has pushed the Overton window forward on accountability. His act brings accountability closer to fruition.

Finally, Russia also cited the argument of lack of jurisdiction when the ICC issued an arrest warrant for Vladamir Putin for his invasion of The Ukraine, and the United States and the global community rejected that argument. In fact, the United States and President Biden celebrated the arrest warrant issued for Putin—how then can the United States flip their own position on Israel without being exposed as hypocritical? Indeed, since the warrant for Putin was issued, he’s restricted his own travel to nations like South Africa, which adhere to the ICC, out of fear of arrest and prosecution. It is reasonable to believe that at the very least, should the ICC judges grant this arrest warrant, Netanyahu, Gallant, and Hamas leaders will be further restricted and isolated in their movement and influence.

What about political pressure against the ICC to retract? Khan also warned against bad faith actors for trying to influence the outcome with threats (as Republican Senators attempted to do with Khan a few weeks prior) as violations of the Rome Statute, which he will prosecute if needed:

I insist that all attempts to impede, to intimidate, or to improperly influence the officials of this court cease immediately. My office will not hesitate to act pursuant to the provisions of article 70 of the Rome statute. If such conduct continues and persists, we will also submit further applications for warrants of arrest if and when we determine after independent and objective analysis that the threshold of realistic Prospect of conviction has been met.

Is Karim Khan alone in his assessment against Israel and Hamas? Quite the contrary, the ICC also convened a panel of renowned experts on international law to review the evidence put forth by the ICC and provide their own assessment of the validity of the evidence and charges against Hamas and Israeli leadership. You can read their full report here, but in summary this panel of experts concluded regarding the three accused Hamas leaders:

The Panel has concluded that there are reasonable grounds to believe that the three suspects had a common plan that necessarily involved the commission of war crimes and crimes against humanity

Likewise, regarding Netanyahu and Gallant, the Panel concluded:

In the Panel’s view, there are reasonable grounds to believe that the suspects committed these crime [of] of wilful killing or murder and intentionally directing attacks against the civilian population, as well as the crimes against humanity of extermination or murder and persecution for deaths resulting from the use of starvation and related acts of violence including attacks on civilians gathering to obtain food and on humanitarian workers.

Who is on this panel of experts? This panel of experts in international human rights law includes Sir Adrian Fulford PC, Judge Theodor Meron CMG, Amal Clooney, Danny Friedman KC, Baroness Helena Kennedy LT, KC Elizabeth Wilmshurst CMG KC, Professor Marko Milanovic, and Professor Sandesh Sivakumaran.

Back on October 9, Israeli Defense Minister Gallant declared:

I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we act accordingly.

I rebuked and warned Gallant that the response to war crimes cannot be more war crimes:

As a human rights lawyer, let me remind you just how horrifically illegal Defense Minister Gallant's order is:

1. This is Collective punishment of 2.2M people—which is prohibited by treaty in both international and non-international armed conflicts, specifically Common Article 3 of the Geneva Conventions and Additional Protocol II.

2. This is an attack on children—who comprise 50% of the 2.2M people in Gaza. Denying children food, heat, and medical aid is a violation of international human rights law and one of the "6 grave violations" condemned by the UN Security Council.

3. This is a disproportionate response—which International Humanitarian Law Rule 14 of Proportionality specifically forbids.

   We must condemn Hamas killing Israeli civilians, and Israel grotesquely violating international law in response. Moreover, such a response from Israel will not foster peace or justice, but risks further escalation and death of civilians—Palestinian and Israeli. The international community must intervene to ensure a cease fire immediately.

What happens next? Now the ball is in the hands of the ICC Judges. The judges may take a few weeks to a few months yet to process the evidence and make a determination. If they decline, then the prosecution is concluded. If they accept and grant the arrest warrants, then the ICC would work with state enforcement agencies to formally issue the warrants and seek custody of the accused, after which a trial would begin. This post warrant process can take up to two years or longer. It is worth noting that this arrest warrant of Netanyahu is the first ever warrant issued of the head of a State which considers itself a democracy. How ironic, therefore, that Israel considers itself a democracy on one hand, yet refuses to submit to the democratic principle of due process of law under the ICC.

Since October 8, the Israeli Government under Netanyahu and Gallant have killed more than 34,000 Palestinians, 70% of whom are women and children. Ample evidence demonstrate deliberate bombing civilians, hospitals, schools, and hundreds of locations specifically designated by the Israeli military as safe zones, before they were subsequently deliberately bombed.

The seeking of arrest warrants issued by ICC Chief Prosecutor Karim Khan against both Hamas and Israeli leadership is a critical step forward in maintaining rules based order and justice as our ultimate standard. I am hopeful that the ICC Judges will grant these arrest warrants and urge the global community to place principles and humanity above politics and power, and collaborate to uphold justice for Palestinians and Israelis.

Put your questions in the comments below and I’ll do my best to answer them.

Watch ICC Prosecutor Karim Khan’s full comments here: