International Criminal Court seeks arrest warrants against Netanyahu and Sinwar for war crimes

The International Criminal Court (ICC) chief prosecutor Karim Khan is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minister Yoav Gallant and Hamas leaders Yahya Sinwar (Head of Hamas),  Mohammed Diab Ibrahim Al-Masri (Commander-in-Chief of the military wing of Hamas, Al-Qassam Brigades) and Ismail Haniyeh (Head of Hamas Political Bureau) on charges of war crimes and crimes against humanity over the October 7 attacks on Israel and the subsequent war in Gaza.

In a televised statement, the ICC chief prosecutor listed out the war crimes for which he is seeking the arrest of the 5 leaders, which include:

• 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.

Prosecutor Khan has stated that his Office believes that these war crimes were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel.

The warrants against Israeli politicians, the prime minister himself, mark the first time the ICC has directly assigned blame and responsibility to the highest levels of Israel’s leadership. This decision puts Netanyahu in the company of the Russian President Vladimir Putin, for whom the ICC has issued an arrest warrant over Moscow’s war on Ukraine.

On the other side, the Hamas leadership, which was responsible for the horrific terror attacks of 7 October, 2023 and continues to hold Israeli hostages in Gaza, has also been brought to the dock by the ICC.

A panel of ICC Judges will now consider prosecutor Khan’s application for the arrest warrants. Khan has said the charges against the Hamas leadership of Sinwar, Haniyeh and al-Masri include “extermination, murder, taking of hostages, rape and sexual assault in detention.”

The charges against Netanyahu and Gallant include “causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict.”

When reports surfaced last month that the ICC chief prosecutor was considering this course of action, the Israeli Prime Minister had said that any ICC arrest warrants against senior Israeli government and military officials “would be an outrage of historic proportions,” and that Israel “has an independent legal system that rigorously investigates all violations of the law.”

It is to be noted that Israel and the United States, which is the principal ally of Israel, are not state-party members of the ICC. However the ICC has the power to prosecute individuals accused of war crimes and the ICC prosecutor claims to have jurisdiction over Gaza, East Jerusalem and the West Bank after Palestinian leaders formally agreed to be bound by the court’s founding principles in 2015.

The International Criminal Court is a separate international tribunal and intergovernmental organisation from the United Nations International Court of Justice, where a separate case regarding the Israel – Gaza war is ongoing.