The chief prosecutor of the international criminal court has said he is seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant.
Karim Khan said his office had applied to the world court’s pre-trial chamber for arrest warrants for the military and political leaders on both sides for crimes committed during Hamas’s 7 October attack and the ensuing war in Gaza.
He named Yahya Sinwar, the Hamas chief in Gaza, and Mohammed Deif, the commander of its military wing, considered to be the masterminds of the 7 October assault, as well as Ismail Haniyeh, the leader of the group’s political bureau, who is based in Qatar, as wanted for crimes of extermination, murder, hostage-taking, rape, sexual assault and torture.
In an extraordinary rebuke of Israel’s treatment of Palestinians and its conduct in the war in Gaza, Netanyahu and Gallant are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. Monday’s statement notably does not include any Israel Defense Forces (IDF) officials, such as its chief of staff, Lt Gen Herzi Halevi, focusing instead on political decision-making.
Khan, the British ICC prosecutor, must request the warrants for the Hamas and Israeli suspects from a pre-trial panel of three judges, who take on average two months to consider the evidence and determine if the proceedings can move forward.
The ICC has previously issued warrants for Russia’s Vladimir Putin, Muammar Gaddafi of Libya, the Ugandan warlord Joseph Kony and the former president of Sudan Omar al-Bashir, but no leader of a “western-style” democracy has ever been issued a warrant.
While there is no imminent likelihood of prosecution, since Israel is not a member of the court, ICC warrants could put Israeli officials at risk of arrest abroad, further deepening the country’s growing international isolation over its conduct in the war in Gaza.
The move also presents fresh challenges for Israel’s western allies, who are already struggling to reconcile support for the Jewish state with growing evidence of war crimes in the seven-month-old conflict and respect for the post-second world war rules-based order.
Netanyahu described the prosecutor’s accusations against him as a “disgrace”, saying: “I reject with disgust The Hague prosecutor’s comparison between democratic Israel and the mass murderers of Hamas.
“With what audacity do you dare compare the monsters of Hamas to the soldiers of the IDF, the most moral army in the world?”
Joe Biden, the US president, described the move as “outrageous” in a statement, adding: “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.”
About 1,200 people, mostly civilians, were killed on 7 October, and about 35,000 people have been killed in the war in Gaza, according to the Palestinian health ministry, which does not differentiate between civilian and combatant deaths.
“The world was shocked on 7 October when people were ripped from their homes, from their bedrooms in different kibbutzim … people have suffered enormously,” Khan told CNN on Monday. “We have a variety of evidence to support the applications we’ve submitted to the judges.”
“These acts demand accountability,” Khan’s office said in a statement.
The world’s top court decided in 2021 that it had a mandate to investigate violence and war crimes committed by Israel and Palestinian factions in events dating back to 2014, although Israel is not a member of the court and does not recognise its authority. Many in Israel have long maintained that the UN and associated bodies are biased against the Jewish state.
Khan visited the Egyptian side of the Rafah border crossing into Gaza in late October, and Israel and the West Bank in December, and had made clear that the scope of his office’s investigation would be expanded to include 7 October and its aftermath.
Last month, Netanyahu was publicly panic-stricken by the prospect of an ICC prosecution, and reportedly appealed to his ally Biden to intervene in any potential international legal action against Israel.
The ICC investigation into Palestine was opposed by the US and UK before it opened in 2021, and both states have supported Israel’s right to defend itself even as the scale of death and destruction in Gaza has led to protests and political fallout at home.
“We reject the prosecutor’s equivalence of Israel with Hamas,” said the US secretary of state, Antony Blinken. “The ICC arrest decisions could jeopardise efforts to reach a ceasefire agreement, hostage deal and to increase humanitarian aid in Gaza.”
A UK government spokesperson said that London “does not believe that seeking warrants will help get hostages out, get aid in, or deliver a sustainable ceasefire”.
Daniel Machover, a co-founder of Lawyers for Palestinian Human Rights, said: “This is massive news, albeit the wait to get to this point has been too long. The rule of law must now be upheld. The list of potential Israeli defendants is insufficient and the international crimes associated with settlements in the West Bank are notably absent but hopefully the ICC chamber will grant the application as soon as possible and more charges and defendants will be added.
“While not a single life has yet been saved or injury prevented through the application of the rule of criminal law, let’s hope for a deterrent effect from now.”
Condemnation of Khan’s decision from across the Israeli political spectrum was swift. The Israeli opposition leader, Yair Lapid, called the ICC’s actions a “disaster”.
Benny Gantz, a former military chief and member of Israel’s war cabinet alongside Netanyahu and Gallant, criticised the ICC’s announcement, saying Israel fought with “one of the strictest” moral codes and had a “robust judiciary capable of investigating itself”.
Khan suggested heavily in his statement that Israel’s judicial system “shields suspects”. Last year’s conviction rate for Palestinians tried in Israeli military courts was 96%, while fewer than 1% of complaints against Israeli soldiers ended in a conviction, according to the US Department of State’s annual human rights report.
Hamas, too, was critical of Khan’s announcement. The ICC prosecutor’s decision “equates the victim with the executioner”, the senior Hamas official Sami Abu Zuhri told Reuters.
Israel’s foreign minister, Israel Katz described the chief prosecutor’s decision as “a historic disgrace” that would be “remembered forever”.
The US Republican party is all but certain to pursue sanctions against members of the ICC as a result of Khan’s announcement; a group of a dozen Republican senators wrote a letter earlier this month warning his office: “Target Israel and we will target you.”
Sanctions were levied by the Trump administration over the court’s investigations into Israel and US actions in Afghanistan, but later reversed by Joe Biden. In 2021, Khan decided to drop the US from the ICC’s Afghanistan file.
In his statement, Khan made clear he was aware of the potential ramifications of the decision.
“If we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse,” he said.
“Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my office and the court. This is how we will prove, tangibly, that the lives of all human beings have equal value.”
Israel is facing two other major international legal cases over its actions towards Palestinians.
In December, South Africa filed a case against Israel at the international court of justice (ICJ), alleging that its campaign in Gaza breached the UN’s genocide convention, set up in 1948 in the aftermath of the Holocaust.
Israel denies those charges. The ICJ only hears cases between states, so it has no jurisdiction over Hamas.