The chief prosecutor at the International Criminal Court (ICC) has announced he is seeking arrest warrants for the Israeli prime minister, Benjamin Netanyahu, as well as several Hamas leaders over alleged war crimes.
ICC prosecutor Karim Khan KC issued a statement on Monday morning proposing that arrest warrants are issued for Mr Netanyahu, Israel’s defence minister Yoav Gallant, Hamas leader Yahya Sinwar, Mohammed al-Masri, Hamas’s military chief, and Ismail Haniyeh, Hamas’s political leader.
It marks the first time in ICC history that a sitting head of state and a sitting defence minister of a country supported by other powerful Western states, including the UK and US, face arrest warrants, international law experts have told The Independent.
The move comes after weeks of Israel’s staunchest allies calling for restraint in its war in Gaza, particularly around the invasion of the southern Gaza city of Rafah, where more than a million Palestinians fled to avoid being caught up in the earlier stages of Israel’s attacks.
The charges against Mr Netanyahu and Mr Gallant, two of the three core members of Israel’s war cabinet, include “starvation of civilians as a method of warfare … intentionally directing attacks against a civilian population … wilfully causing great suffering … persecution as a crime against humanity … [and] extermination and/or murder.”
A panel of ICC judges will now consider Mr Khan’s application for the arrest warrants.
Israel’s staunchest ally, the US, expressed its shock at the application over Israel’s leader, with President Joe Biden calling it outrageous. “And let me be clear: whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas,” Mr Biden said in a statement.
His top aide secretary of state Antony Blinken also criticised the move, raising questions over the court’s jurisdiction as well as its process in making this application. “Fundamentally, this decision does nothing to help, and could jeopardise, ongoing efforts to reach a ceasefire agreement that would get hostages out and surge humanitarian assistance in,” Mr Blinken said.
If the panel deems it fit to issue the arrests, Mr Netanyahu would be in the same company as Russian president Vladimir Putin, who is currently barred from travelling to any of 124 signatories to the ICC after they issued an arrest warrant against him for his full-scale invasion of Ukraine.
Benny Gantz, Israel’s third war cabinet minister, quickly denounced the seeking of arrest warrants as “a crime of historic proportion”.
“Drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror to leaders of a blood-thirsty terror organisation [Hamas] is a deep distortion of justice and blatant moral bankruptcy,” Mr Gantz said.
Foreign minister Israel Katz said it was “scandalous” and “a historic disgrace that will be remembered forever” as he announced that Israel had opened a special war room to counteract the ICC’s move. He added no force in the world will prevent Israel from bringing back its hostages from Gaza and toppling the Palestinian militant group Hamas.
Israeli president Isaac Herzog said: “We expect all leaders in the free world to condemn outright this step and firmly reject it.”
Israeli opposition leader Yair Lapid condemned the ICC decision as a “disaster”. Addressing his parliamentary faction, Mr Lapid voiced hope that the US Congress would convene and condemn the ICC measure.
The ICC prosecutor’s decision to request an arrest warrant is unhelpful, a spokesperson for British PM Rishi Sunak said in the wake of the announcement – adding that the ICC does not have the jurisdiction to make such requests.
“This action is not helpful in relation to reaching a pause in the fighting, getting hostages out or getting humanitarian aid in,” the spokesperson said, referring to the decision made by the prosecutor of the International Criminal Court.
“The UK, as with other countries, does not yet recognise Palestine as a state and Israel is not a state party to the Rome Statute”, which outlines the ICC’s areas of jurisdiction, the spokesperson said.
More than 35,562 Palestinians have been killed and 79,652 wounded during Israel’s war in Gaza, according to the latest update from the local health ministry. They maintain that the majority of the casualties are women and children.
“Israel, like all states, has a right to take action to defend its population,” Mr Khan’s statement read. “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.”
The charges against Mr Sinwar, Mr Haniyeh and Mr al-Masri all relate to Hamas’s 7 October attack on Israeli soil and the alleged mistreatment of hostages taken into Gaza after the assault.
Around 1,200 people are believed to have been killed during the attack, while 245 people were taken hostage, 120 of which remain in Gaza.
Mr Khan said the crimes of the three leaders include “extermination, murder, taking of hostages, rape and sexual assault in detention”.
He alleges that the three Hamas leaders are “criminally responsible for the killing of hundreds of Israeli civilians in attacks perpetrated by Hamas”.
He said they all effectively acknowledged their responsibility when they visited hostages shortly after their kidnapping.
“My Office also submits there are reasonable grounds to believe that hostages taken from Israel have been kept in inhumane conditions, and that some have been subject to sexual violence, including rape, while being held in captivity,” the statement read.
“We have reached that conclusion based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors. My Office also continues to investigate reports of sexual violence committed on 7 October.”
A senior Hamas official told Reuters after the statement was made that it “equates the victim with the executioner”.
Sami Abu Zuhri also said the ICC decision gives encouragement to Israel to continue its “war of extermination” in Gaza.
The possibility of arrest warrants for the three Hamas leaders may appear uncontroversial – but the ICC chief prosecutor’s inclusion of Mr Netanyahu is sure to enrage the Israeli administration.
When reports surfaced last month that Mr Khan was considering this course of action, Mr Netanyahu suggested such a move “would be an outrage of historic proportions”, comments that have since been echoed by Mr Gantz.
He reiterated that Israel “has an independent legal system that rigorously investigates all violations of the law”.
Asked by CNN about the comments made by Mr Netanyahu, Mr Khan said: “Nobody is above the law.”
Elsewhere, there was support for Mr Khan’s decision. Renowned human rights barrister Amal Clooney, who led a panel of experts in international law convened by Mr Khan, at the same time published the panel’s findings which she said “unanimously endorsed” the prosecutor’s decision.
The panel included some of the world’s most prestigious international law experts including Sir Adrian Fulford, a former ICC judge, Helena Kennedy, a member of the House of Lords and director of the International Bar Association Human Rights Institution, and Theodor Meron, a former judge and former president of the International Criminal Tribunal for the former Yugoslavia.
Kevin Jon Heller, a special adviser to Karim Khan and a professor of international law and security at the University of Copenhagen, told The Independent it was a “groundbreaking” moment in ICC history.
“This both the most momentous day in the ICC’s history and one of the most momentous days in international politics in a long time,” he said.
“This is the first time in the country’s history the office of the prosecutor has sought arrest warrants for a sitting head of state and a sitting minister of defence of a Western state that is supported by powerful Western states, including the US, and also powerful states which are members of the court like UK, Germany and France”, he added.
“It’s one thing to bring charges against Putin… who is relatively isolated internationally,” Prof Heller said. “Israel is in a very different place than Russia. That is really fundamentally new. It is a long road ahead. This is just the beginning, not the end, but it is a pretty important beginning.”
He added that he fully expected the applications for the arrest warrants to be granted which could impact the ability for any of the five to travel. Every state that is a member of the ICC has a legal obligation under international law, via the Rome Statute, to execute the arrest warrants.
In a statement released shortly after the news broke the families of the hostages said it “applauds” the application for arrests against senior Hamas officials saying it served as “further recognition of the crimes against humanity they committed on 7 October and continue to perpetrate”.
They said that at least 128 innocent hostages from 24 nations remain captive in Hamas tunnels, “where they suffer daily physical, sexual, and psychological abuse”.
However, the families said they were “not comfortable with the equivalence drawn between Israel’s leadership and the terrorists of Hamas.”
“We believe the way to prove this distinction to the world is by immediately entering into negotiations that will free the hostages – the living for rehabilitation, and the deceased for burial,” they added.
It comes as Israel made a new push in central Gaza on Monday, bombarded towns in the north of the strip and said it intended to broaden its military operation in Rafah despite US warnings of the risk of mass casualties in the southern city.
Gaza medics said at least 23 people had been killed in the latest fighting, and residents said battles were intense in Jabalia in the north of the Palestinian enclave.
Israeli tanks also carried out a limited incursion into the areas of Wadi al-Salqa and al-Karara near Deir al-Balah, a central Gazan city which Israeli forces have not entered during more than seven months of war, local residents said.
Meanwhile, US national security adviser Jake Sullivan held talks in Israel that the White House had said would involve him calling for Israeli forces to go after Hamas militants in Gaza in a targeted way, not with a full-scale assault on Rafah.
But Mr Gallant signalled there would be no let-up in Israel’s operation, adding that they intended to clear Rafah of Hamas militants and rescue hostages seized in the Hamas-led raid.
“We are committed to broadening the ground operation in Rafah to the end of dismantling Hamas and recovering the hostages,” a statement from Mr Gallant’s office quoted him as telling Mr Sullivan.