The International Criminal Court wants to issue arrest warrants for top Hamas leaders – as well as for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant – on charges of crimes against humanity in the Gaza war, its Chief Prosecutor Karim Khan announced Monday, the 227th day of the Gaza war.
“My office seeks to charge two of those most responsible, Netanyahu and Gallant, both as co-perpetrators and as superiors,” Khan stated.
Warrants would also be sought for Hamas leaders Yahya Sinwar, Ismail Haniyeh, and Mohammed Deif, Khan said as he demanded the release of the remaining 128 hostages in Gaza.
Khan first spoke of asking the pre-trial chamber to approve the issuance of arrest warrants in an interview with CNN’s Christiane Amanpour. He then published a video and text statement from his office.
His words put an end to the speculation as to whether Khan’s office would seek such warrants, a step that the ICC’s pre-trial chamber must still approve.
The announcement is unusual because the presence of the warrants has in the past only been made public once the pre-trial chamber gave the go-ahead.
Netanyahu is the first Israeli leader and the only head of a democratic country ever to face the threat of ICC arrest. He is now likely to join the small ranks of world leaders the ICC has marked as international pariahs such as Russian President Vladimir Putin, former Sudanese president Omar al-Bashir, and former Libyan president Muammar Gaddafi.
Israel is not a party to the Rome Statute, which governs the ICC. Should the pre-trial chamber agree to issue the warrants, the legal process could take years. The announcement, however, adds strength to the growing international call for Israel to stop its military campaign in Gaza to destroy Hamas.
Israel was outraged that Khan had drawn a moral equivalence between its democratic country and a terror group, particularly given that the state’s legal system is globally respected while Hamas is a non-state actor without an independent judiciary.
Netanyahu warned that the arrest warrants against a democratic state would “cast an everlasting mark of shame on the international court.”
The Chief Prosecutor has created “a twisted and false moral equivalence between the leaders of Israel and the henchmen of Hamas. This is like creating a moral equivalence after September 11th between [former US] President [George] Bush and [slain al-Qaeda leader] Osama Bin Laden, or during World War II between [former US President Franklin Delano Roosevelt] FDR and [former German Chancellor Adolf] Hitler.”
“The prosecutor’s absurd charges against me and Israel’s defense minister are merely an attempt to deny Israel the basic right of self-defense,” an attempt that “will utterly fail,” Netanyahu stated.
It will also undermine the right of “every democracy to defend itself” against terror organizations, Netanyahu said.
He likened Khan’s actions to past blood libels against the Jews, charging that “He is callously pouring gasoline on the fires of antisemitism that are raging across the world. Through this incendiary decision, Mr. Khan takes his place among the great antisemites in modern times. He now stands alongside those infamous German judges who donned their robes and upheld laws that denied the Jewish people their most basic rights and enabled the Nazis to perpetrate the worst crime in history.”
Hamas also protested the link Khan made between its leaders and Netanyahu, denouncing the ICC for equating “the victim with the executioner” by issuing arrest warrants against a number of Palestinian resistance leaders.
“Hamas… demands the cancellation of all arrest warrants issued against leaders of the Palestinian resistance, for violating UN conventions and resolutions.”
Khan said it was critical to establish equality under the law. “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,” Khan explained.
If the arrest warrants are granted, Khan said, Netanyahu and Gallant would face accusations of starvation of civilians as a method of warfare, willfully causing great suffering or serious injury to body or health, and willful killing.
The charges would also include: “Extermination and/or murder… including in the context of deaths caused by starvation, as a crime against humanity,” he explained.
“We submit,” Khan said, “that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to state policy.
“These crimes, in our assessment, continue to this day,” Khan explained.
“Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival,” Khan said.
At the start of the war, he said, Israel closed the three crossings into the enclave and kept them shut for extended periods, including the Rafah passageway from Egypt and the two Israeli land crossings at Kerem Shalom and Erez.
Israel also “arbitrarily restricted the transfer of essential supplies – including food and medicine – through the border crossings after they were reopened. Water and electricity supplies were also shut down, with issues remaining until today, he added.
“My office submits that these acts were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population,” Khan charged.
He noted that this was done as part of Israel’s strategy to destroy Hamas and pressure the group to release the hostages.
At the same time, he said, it was also carried out to “collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel,” Khan stated.
The Palestinian suffering has been profound, he stressed, explaining that it has included “malnutrition, dehydration, profound suffering, and an increasing number of deaths among the Palestinian population, including babies, other children, and women.”
Khan’s statement comes as Israel is in its seventh month of an existential war against Hamas, which led an invasion of the Jewish state’s southern border on October 7, killing over 1,200 people and seizing 252 as hostages, out of which 128 remain in captivity.
The international community had already viewed Israel’s actions in Gaza as a war crime, with Hamas asserting that over 35,000 Palestinians had been killed in the conflict. It has verified close to 25,000 of those deaths. Israel has claimed that it killed some 14,000 Palestinian combatants in Gaza. The United Nations has warned of famine conditions in Gaza, due to the lack of a sustainable system to distribute aid in the enclave.
Israel has argued that its actions fell within the boundary of international law, stressing that there is no famine in Gaza. It has explained that it allowed entry of goods, but that Hamas stole them and the United Nations failed to properly distribute them.
Khan said that 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 the body or health of the civilian population – are criminal,” he stated.
Since last year, Khan said, his office has warned Israel to take the issue of humanitarian aid more seriously, noting that “starvation as a method of war” was against the Rome Statute.
“I could not have been clearer,” he said. “Those who do not comply with the law should not complain later when my office takes action. That day has come.”
ICC charges Hamas leaders as well
Khan did not ignore Hamas, stressing that their leaders – Sinwar, Haniyeh, and Deif – were also guilty of crimes against humanity.
“My office submits there are reasonable grounds to believe that Sinwar, Deif, and Haniyeh are criminally responsible for the killing of hundreds of Israeli civilians in attacks” on October 7, he said.
“It is the view of my office that these individuals planned and instigated the commission of crimes on 7 October 2023, and have through their own actions, including personal visits to hostages shortly after their kidnapping, acknowledged their responsibility for those crimes,” Khan said.
“We submit that these crimes could not have been committed without their actions,” he stated, adding that “These acts demand accountability,” he said.
The charges against Hamas would include extermination, murder, hostage taking, torture, cruel treatment, outrages upon personal dignity, and other inhumane acts, Khan explained.
There is reason to believe, Khan said, that the hostages had been kept in inhumane conditions and had been subject to sexual violence such as rape.
Khan reiterated his call for the “immediate release of all hostages taken from Israel and for their safe return to their families.”
By seeking these warrants, Khan said, “We once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity.
“This is how we will prove, tangibly, that the lives of all human beings have equal value,” Khan said.
“Nothing can justify willfully depriving human beings, including so many women and children, of the basic necessities required for life,” he stressed in a comment aimed at Israel. Then in attacking Hamas, he stated, “Nothing can justify the taking of hostages or the targeting of civilians.”
Khan shot back at those who have accused the court of political motivations or who have launched a diplomatic campaign against it.
“I insist that all attempts to impede, intimidate, or improperly influence the officials of this court must cease immediately. My office will not hesitate to act pursuant to article 70 of the Rome Statute if such conduct continues,” he stated.
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