Table of Contents
Listen to This Article
The ICC’s Arrest Warrants
After months of delay, the International Criminal Court (ICC) on November 21 finally issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity committed in Gaza since October 8, 2023, until at least May 20, 2024, when the ICC Prosecutor first requested the warrants.
The request by Prosecutor Karim A.A. Khan had to be approved by a panel of three court judges called the Pre-Trial Chamber I. Along with the two Israeli leaders, Khan requested arrest warrants for three top Hamas officials for war crimes and crimes against humanity committed in Israel on October 7, 2023. At least two of the three Hamas leaders have since been killed.
Ismail Haniyeh, the head of Hamas’s political bureau, was assassinated in Tehran, Iran, on July 31, in a bombing carried out by Israel.
Yahya Sinwar was the top Hamas official in Gaza who masterminded the October 7 attacks and, after Haniyeh’s assassination, was also appointed head of the political bureau until he was killed by Israeli forces on October 16.
The third Hamas official is Mohammad Deif, the head of Hamas’s military wing who planned what was called “Operation Al Aqsa Flood” with Sinwar, and whom Israel claims to have killed in Gaza on August 1.
The ICC nevertheless issued the arrest warrant for Deif because “it is not in a position to determine whether Mr Deif has been killed or remains alive.”
The Prosecutor issued a statement explaining that the judges “have found reasonable grounds to believe” that Deif “is responsible for the crimes against humanity of murder, extermination, torture, and rape and other forms of sexual violence; as well as the war crimes of murder, cruel treatment, torture, taking hostages, outrages upon personal dignity, and rape and other forms of sexual violence.”
Netanyahu and Gallant both stand accused of having “committed the war crime of using starvation as a method of warfare and crimes against humanity of murder, persecution, and other inhumane acts”, as well as “the war crime of intentionally directing attacks against civilians as a superior.”
While Israel is not a party to the Rome Statute, which is the international treaty that established the ICC, Palestine is a signatory, which gives the ICC jurisdiction in the situation in Gaza, where Israel remains the Occupying Power under international law.
Membership in the ICC was facilitated by the decision of the UN General Assembly on November 29, 2012, to upgrade Palestine’s status from observer to a “non-member observer state”.
The US joined Israel in voting against that General Assembly resolution and is also not a party to the Rome Statute.
The decision by the ICC to issue the warrants obligates all 124 state parties to the Rome Statute, if Netanyahu or Gallant were to enter their territory, to arrest them and transfer them for prosecution by the ICC in The Hague, Netherlands.
Prime Minister Netanyahu responded to the ICC’s issuance of warrants by dismissing it as “antisemitic”.
President Biden issued a statement calling the ICC’s action “outrageous” and reaffirming its pledge to “always stand with Israel”.
An editorial in the Washington Post similarly dismissed the development as an offense against reason and justice. The ICC “is not the venue to hold Israel to account”, the newspaper declared, arguing that “the arrest orders undermine the ICC’s credibility and give credence to the accusation of hypocrisy and selective prosecution.” The editors objected to the ICC treating “the elected leaders of a democratic country” no differently than “dictators and authoritarians who kill with impunity.”
The Post was thus effectively arguing that the ICC should stick to prosecuting two-bit dictators in Africa and that killing with impunity is acceptable as long as those responsible for the mass murder are democratically elected.
The ICC’s Credibility on the Line
The issuance of the warrants indicates a dramatic shift in the ICC’s role in the world governmental order. Essentially, the ICC was faced with a decision to act and issue the warrants or to render itself irrelevant by destroying its own credibility.
As Israeli analyst Dahlia Scheindlin told the New York Times, “The warrants could prop up the legitimacy of international institutions already damaged from so many failures, and this could revive the sense of some consistent application of the law to Western countries, even those backed by the United States.”
She added that the US “will go ballistic” and try to undermine the ICC’s effort to hold the Israeli leaders accountable.
The New York Times observed that
The arrest warrants amounted to the first time that leaders of a modern Western democracy have been accused of war crimes and crimes against humanity by a global judicial body. . . . The warrants for Mr. Netanyahu and Mr. Gallant may be interpreted by many countries in the global south as a sign that international institutions are no longer necessarily the tools of Western powers.
As human rights attorney and war crimes prosecutor Reed Brody told Drop Site News,
This is a watershed event in the history of international justice. The ICC has never, in over 21 years, indicted a pro-Western official. Indeed, no international court since World War II has done so. Up until now, the instruments of international justice have been used almost exclusively to address crimes by defeated adversaries as in the Nuremberg and Tokyo tribunals, powerless outcasts, or opponents of the West such as Vladimir Putin or Slobodan Milošević.
Human Rights Watch observed how the ICC’s decision had come in spite of “unprecedented pressure” to serve the political agenda of the US and Israel, including the threat from US Senators to sanction the ICC Prosecutor, whose office responded to such pressure by saying that its independence and impartiality were undermined when actors “threaten to retaliate against the Court or against Court personnel should the Office, in fulfillment of its mandate, make decisions about investigations or cases falling within its jurisdiction.”
The Prosecutor’s statement further noted that such threats may themselves violate Article 70 of the Rome Statute, which explicitly prohibited “Retaliating against an official of the Court on account of duties performed by that or another official” and “Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties.”
While the ICC’s recent move marks a shift away from what has been seen as a prejudicial role in prosecuting thugs from third-world countries while Western leaders get away with their war crimes, an element of bias can still be seen in the contrast between the arrest warrants issued for the two Israeli leaders versus the reportedly dead Hamas official.
For instance, whereas the ICC concluded in the case of Mohammed Deif that “there are reasonable grounds to believe that the crime against humanity of extermination was committed” on October 7, in the case of the Israeli leaders, the court curiously said it “could not determine that all elements of the crime against humanity of extermination were met.”
This is self-contradictory given the definition of “extermination” under the Rome Statute. Among other “crimes against humanity”, the crime of “extermination” is defined under Article 7 as including “the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population”, when such acts are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.
While the same cannot be said of Hamas with respect to the Israeli population, Israel has certainly been deliberately depriving the civilian population of Gaza access to food and medicine, and the two Israeli leaders stand accused by the ICC of using “starvation as a method of warfare”, which is defined as a “war crime” under Article 8.
Yet the ICC seems to have chosen to overlook how this also equates to the crime of extermination since it is literally the entire population of Gaza that has been targeted by Israel’s policy of using starvation as a method of warfare.
Additionally, the ICC alleged that the Hamas official is guilty of “extermination” due to the “mass killing of members of the civilian population” on October 7, when 1,269 Israelis were killed including 382 members of the military and 816 civilians; yet Israel has since been engaging in an incomparably greater mass killing of civilians, with over 43,000 Palestinians killed, approximately 70% of whom have been women and children, which is roughly equivalent to the proportion of women and children in the Gaza population, indicating the deliberately indiscriminate nature of Israel’s bombardment.
