ICC Prosecutor Seeks Arrest Warrants for Leadership of Hamas and for Israel’s Prime Minister and Defense Minister
The prosecutor of the International Criminal Court, Karim A.A. Khan KC, asked the ICC to issue arrest warrants for 3 top leaders of Hamas (Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif), Ismail Haniyeh — the overall leader of Hamas, the military leader, and the political branch leader, respectively) and for two top leaders of Israel, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Along with the prosecutor’s statement, the unanimous opinion of a panel of experts on international humanitarian law/the law of armed conflict was released, agreeing that arrest warrants would be appropriate in each case. I’ve read through those materials. While I’m not at all expert on matters of international humanitarian law, I thought I could still provide some useful analysis.
0. The ICC itself has not acted on this yet. No arrest warrants have been issued. Instead, this is a request that the court take action and issue these arrest warrants.
1. Neither the prosecutor’s statement nor the expert panel’s opinion provides any substantial evidence to the public; they describe in broad terms the evidence they reviewed and provided to the ICC, but don’t provide that evidence publicly. That makes a lot of sense — warrants are generally sought ex parte, meaning with only the prosecutor presenting information to the court issuing the warrant, and without publicly disclosing the factual basis for the warrant, in part to allow for ongoing investigation and to protect witnesses and evidence. Unfortunately, this limits our ability to at this stage independently evaluate whether the evidence is sufficient to justify an arrest.
2. The basic allegations seem highly plausible, based on my efforts to understand what’s going on in Gaza and Israel from media reports.
a. The Hamas leaders are accused of “extermination” (essentially, targeted mass murder of a civilian population); murder as a war crime and crime against humanity (essentially for deliberately targeting and murdering civilians); taking hostages as a war crime; rape/sexual assault as war crimes and crimes against humanity; torture, as a war crime and crime against humanity; and other inhumane acts (as a crime against humanity), cruel treatment (a war crime), and crimes against personal dignity (a war crime), all in the context of the captivity of hostages. The factual bases of those allegations seem almost incontrovertible — while Hamas defends its actions as based on resistance against what it views as an immoral occupation, international humanitarian law is clear that targeting civilians is not permitted even if armed conflict against military targets would be completely legal. Even assuming Hamas’s overall position on Palestine/Israel, many of Hamas’s actions on October 7 and since clearly violate international humanitarian law, because one of the basic principles is that you can’t treat a civilian population as a valid target for attacks, and you can’t use certain types of attacks (e.g. rape and torture) even against valid targets. It’s still necessary, of course, to prove those offenses, to demonstrate that the accused were responsible for the offenses taking place, and that they had the requisite intent. However, the basic conclusions here seem extremely plausible.
b. Netanyahu and Gallant are accused of: starvation of civilians as a method of warfare, as a war crime; willfully causing great suffering or severe injury as a war crime; murder as a war crime; intentionally targeting civilian populations as a war crime; extermination (again, essentially mass murder of civilians), including by starvation, as a war crime; persecution as a crime against humanity; and other inhumane acts as a crime against humanity, all in the post-October 7th context. The whole legal question here is about how Israel has conducted the war in Gaza, and how Netanyahu and Gallant are responsible for that. International humanitarian law allows a wide range of actions in warfare, including proportional and necessary actions to fight a war that knowingly kill civilians. However, targeting civilians and using starvation as a means of warfare is not permitted — even in a blockade context, water, necessary fuel, and food need to be allowed in to civilians, even though that will also supply combatants. And during an occupation, the occupying army has an affirmative obligation to supply food and water to the civilian population of the occupied area. The facts here are less clear-cut than the facts about Hamas’s atrocities on October 7, but the reports about ongoing struggles to get food, water, and other essential necessities in to civilian populations in Gaza make it seem quite plausible that Netanyahu and Gallant are committing war crimes — again, in a context where punishment requires proving those elements, showing their personal responsibility, and proving necessary intent. Without seeing the actual evidence, I can’t say more than that — but it sure looks plausible factually.
3. The concept of international humanitarian law requires the idea that tit-for-tat is not okay. The obligation to not commit war crimes or crimes against humanity is not part of a gentlebeings’ agreement, where a violation by one party to a conflict frees the other party to commit war crimes with impunity. Instead, it’s a set of rules that bind how armed conflict is permitted to be pursued even when the armed conflict itself is justified or required by international law. Indeed, applying the idea of tit-for-tat retaliation is incoherent when applied to attacking civilian populations — even if some Palestinians are committing war crimes and crimes against humanity, innocent Palestinians (most obviously young children, who can’t have any culpability, but also civilians who are not engaged in the conflict regardless of age or gender) still have an entitlement to the protections of international humanitarian law. And likewise, even if prior to Oct. 7, Israel’s military and government were committing violations of international humanitarian law, that doesn’t legally justify Hamas targeting civilian populations or using rape and hostage taking as a war-fighting action. That means that the response by both the Israeli government — arguing that this is outrageous because the Israeli government is acting in the defense of its people against terrorism and atrocities — and the response by Hamas — arguing that its actions are justified by anti-colonialist resistance against an occupying tyrannical power — are equally bullshit. Oct. 7 justifies a military response by Israel. Israel’s past conduct arguably justifies a military response by Hamas. Neither gives carte blanche for crimes against humanity or war crimes, even if their adversary is committing crimes against humanity or war crimes.
4. The expert panel is extremely distinguished. They are something of a who’s who of British authorities on international humanitarian law. Perhaps the most outstanding example is Theodor Meron, a judge for the war crimes tribunal for the former Yugoslavia, a survivor of the Holocaust, a former resident of Israel and advisor to the Israeli government on international law obligations, and in general a major authority on international humanitarian law — but in general, they have a great deal of credibility. Their report has essentially no substantial legal argumentation (most of the legal issues are pretty clear cut, with the exception of the jurisdiction of the ICC which they treat as basically settled by a prior ICC ruling) and describes in general terms (i.e. testimony of eye witnesses, video evidence, etc.) the evidence without actually presenting the content of the evidence. As a result, this is basically a “hey, we’re really authoritative and credible, and we think the prosecutor is right to be doing this” rather than a reasoned argument proving the prosecutor is right to be doing this. Nonetheless, precisely because of that gravitas, their report influences my thinking towards accepting the prosecutor’s judgment that seeking a warrant is appropriate.
5. The thorniest legal issue (as opposed to factual issues) presented by this is whether the ICC has jurisdiction at all. In general, the ICC only has jurisdiction over acts committed by state actors who have joined the ICC’s authorizing treaty or in territory of state actors who have joined the ICC’s authorizing treaty. Israel has not joined the ICC treaty. Palestine, of course, is not recognized as a nation by many nations, including Israel and the United States, or by the UN. This creates a really weird situation with regard to territory like Gaza and (at least parts of) the West Bank, which are as a matter of Israeli law and government policy not part of Israel or under Israeli sovereignty and yet are clearly not part of any other recognized nation. However, Palestine has sought to join the ICC, and the ICC has accepted its membership, despite the fact that it is not recognized as a nation for many other purposes by many other international bodies. And the ICC has ruled previously that Palestine’s accession to the ICC gives it jurisdiction over crimes against humanity and/or war crimes committed in Gaza or the West Bank, or by non-state actors in Israel as part of their Gaza and West Bank-based armed conflict with Israel over Gaza and the West Bank. This is theoretically very weird, but makes perfect sense if you accept that Gaza and the West Bank are de facto the sovereign nation of Palestine, even if a legal fiction is maintained that Palestine is not a recognized nation. Of course, Israel doesn’t want to accept Gaza and the West Bank as part of Israel in part because that would imply that most or all Palestinians should be Arab Israeli citizens, which would threaten the entire Israeli governmental structure. So this is all messy and weird, but it’s also basically settled law within the ICC, even if it’s in tension with e.g. the US exercising its Security Council veto to prevent the UN from recognizing Palestine as a separate, sovereign nation.
6. The biggest question is whether handling these matters together makes sense. On the one hand, it underlines that misconduct by Hamas does not justify misconduct by Israel, and vice versa. On the other, it suggests an equivalency or both-sides-ism that both Israel and its supporters and Hamas and its supporters vehemently object to. There’s also the question of the degree to which this should be handled as a legal issue, and the degree to which it should be handled as a political issue, in terms of whether to seek arrests together or separately. I don’t feel qualified to express a strong opinion on this. My vague sense is that it would have been better to have relatively quickly sought arrest warrants for Hamas’s leadership after Oct. 7, and to then be following that with action with regard to Israel’s leadership later as the more complicated facts with regard to allegations of Israeli crimes against humanity and war crimes were developed. But I could easily be wrong on that.
