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ICC prosecutor seeks warrants for top Israeli, Hamas leaders

Israeli Prime Minister Benjamin Netanyahu makes a statement on Nov. 24, 2015, at the Prime Minister’s Office in Jerusalem. (U.S. State Department/Released)

This article was originally published by Radio Free Europe/Radio Liberty and is reprinted with permission.

The chief prosecutor of the International Criminal Court (ICC) announced on May 20 that he is seeking arrest warrants for Israeli leaders, including Prime Minister Benjamin Netanyahu, and senior figures in Hamas, which has been designated a terrorist organization by the United States and the European Union.

Prosecutor Karim Khan said he believes Netanyahu, Israeli Defense Minister Yoav Gallant, and three Hamas leaders — Yehya Sinwar, Mohammed Deif, and Ismail Haniyeh — are responsible for war crimes and crimes against humanity in the Gaza Strip and Israel.

U.S. President Joe Biden condemned the court’s bid to issue arrest warrants for Israeli leaders as an “outrageous” action.

“And let me be clear: Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” Biden said in a statement.

In his statement, Khan said he has “reasonable grounds” to believe Netanyanhu and Gallant “bear criminal responsibility” for alleged crimes including “starvations of civilians as a method of warfare,” “willfully causing great suffering,” “intentionally directing attacks against a civilian population,” and “other inhumane acts.”

The three Hamas leaders were accused of responsibility for “extermination,” “taking hostages,” “rape and other acts of sexual violence,” “torture,” and “other inhumane acts.”

The court’s three pretrial judges will determine whether there is sufficient evidence to issue warrants.

ICC spokesman Fadi Al-Abdallah told RFE/RL in an e-mail that the ICC judges “will issue their decision in due course” but did not offer a specific time frame.

“Karim Khan’s decision to seek arrest warrants for five people for grave international crimes committed in Israel and Palestine since October 7 in the face of pressure from U.S. lawmakers and others reaffirms the crucial role of the [court],” said Louis Charbonneau, United Nations director at Human Rights Watch, referring to the October 7 cross-border attack Hamas carried out that sparked the current war.

Some 1,200 Israeli citizens were killed in the attack, while another 240 were taken hostage, some of whom are still being held by Hamas in Gaza.

“Victims of serious abuses in Israel and Palestine have faced a wall of impunity for decades. This principled first step by the prosecutor opens the door to those responsible for the atrocities committed in recent months to answer for their actions at a fair trial,” he added.

David Bosco, a professor at Indiana University-Bloomington and an expert on the ICC, told RFE/RL that “one thing that’s important to note is that over the years that the ICC has been operating, the judges and the prosecutor do not always agree.

“So it’s not a foregone conclusion that the prosecutor will get all the arrest warrants that he wants, or for the precise charges that he wants.

“I think the arrest warrants for Hamas are probably more straightforward in the sense that you have…the October 7 attack that seemed to be aimed primarily at civilians,” he said.

“With Israel,” he added, “you’ve got a more complicated situation involving humanitarian aid and whether Israel has been allowing enough humanitarian aid in and has it actually been trying to use starvation as a weapon?

“Those are somewhat more complicated cases, I would say, from a legal perspective,” he said.

Anthony Dworkin, a senior fellow at the European Council on Foreign Relations and former executive director of the Crimes of War Project, told RFE/RL that the warrants represent “a significant moment, both in the evolution of the International Criminal Court and the conflict in the Middle East.”

“We’ve seen before many countries, a number of leaders, being indicted by the ICC or having arrest warrants issued against them, but this is the first time a country that’s an ally of the West in Europe and the United States has had an arrest warrant against them.

“I think even the fact that the prosecutor is seeking arrest warrants is likely to step up pressure on those countries that are particularly supporting Israel militarily to really review the kind of support that they’re giving [and] to investigate whether they believe that military assistance is being used to commit war crimes.”

Mark Ellis, executive director of the International Bar Association, told RFE/RL that “I would expect those — the arrest warrants or the charges and the request for the arrest warrants — to be upheld by the pretrial chamber.”

“I think the prosecutor will be very focused and will be quite diligent in ensuring he has presented all the evidence necessary for the pretrial chamber to, in essence, reaffirm the request by the prosecutor,” he added.

Israel is not a member of the ICC, and, even if the warrants are issued, it is unclear whether Netanyahu and Gallant would face prosecution. But Khan’s announcement does increase international pressure against Israel over its conduct of the conflict.

The Rome Statute, the 1998 treaty establishing the International Criminal Court, has been signed by 124 countries.

Israeli Foreign Minister Israel Katz called the decision “outrageous” and an “an unrestrained frontal assault on the victims of October 7th and our 128 [remaining] hostages in Gaza.”

Sinwar and Dief are believed to be in Gaza, while Haniyeh is reportedly based in Qatar.

“The Hamas movement strongly condemns the attempts of the prosecutor of the International Criminal Court to equate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders,” the group said in a statement.

In a report supporting the arrest warrant applications, a panel of legal experts Kahn put together as advisers said they were unanimous in determining the court has jurisdiction over the case and that there were reasonable grounds to believe war crimes had been committed by all of the figures named.

“It is important to understand that the charges have nothing to do with the reasons for the conflict. The charges concern waging war in a manner that violates the long-established rules of international law that apply to armed groups and the armed forces in every state in the world,” the six-member panel wrote in an opinion article for the Financial Times on May 20.

Israel has denied committing war crimes during the 7-month-old conflict.

Israel’s far-right Finance Minister Bezalel Smotrich likened Khan’s announcement to “Nazi propaganda” and said all Israelis should feel indicted. He called on Israel’s allies to push for disbanding the ICC.

Israeli War Cabinet Minister Benny Gantz also condemned the announcement, calling it “a crime of historic proportions.”

“Drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror to leaders of a bloodthirsty organization is a deep distortion of justice,” Gantz said.

A senior Hamas official also dismissed the ICC prosecutor’s statement, saying it “equates the victim with the executioner.”

The Hamas-run Health Ministry in Gaza says at least 35,000 Palestinians have been killed in the war, without distinguishing between civilians and combatants. About 80 percent of Gaza’s 2.3 million population has been displaced.