What ICC Arrest Warrants Mean For Israel and Hamas

The outrage expressed by the prime minister, and echoed by Israel’s political leadership, was generated by pages of carefully chosen legal language in a statement issued by Mr Khan, the ICC chief prosecutor who is a British King’s Counsel.

Word by word, line by line, they add up to a devastating series of allegations against the three most prominent leaders of Hamas as well as Israel’s prime minister and defence minister.

A determination to apply international law and the laws of armed conflict to all parties, no matter who they are, lies at the heart of Mr Khan’s statement in which he lays out his justification for requesting arrest warrants.

“No foot soldier, no commander, no civilian leader – no one – can act with impunity.” The law, he says, cannot be applied selectively. If that happens, “we will be creating conditions for its collapse”.

It is the decision to hold both sides’ conduct up to the template of international law that is causing so much anger, and not just in Israel.

US President Joe Biden said it was “outrageous” to apply for arrest warrants. There was “no equivalence – none – between Israel and Hamas”.

Hamas demanded the withdrawal of the allegations against its leaders, claiming that the ICC’s prosecutor was “equating the victim with the executioner”. It said the request to issue arrest warrants for the Israeli leadership came seven months too late, after “the Israeli occupation committed thousands of crimes”.

Mr Khan does not make direct comparisons between the two sides, except to lay out his claim that they have both committed a series of war crimes and crimes against humanity.

He also emphasises that this latest war comes in the context of “an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas”.

The court treats Palestine as a state as it has observer status at the United Nations, which meant it was able to sign up to the Rome Statute which created the ICC.

Mr Netanyahu has declared that Palestinians will never have independence on his watch.

Yahya Sinwar, the Hamas leader in Gaza, is believed to be hiding somewhere in the Palestinian enclave. Image | LightRocket via Getty Images

Instead of seeing disgraceful and false parallels between, as Israel’s President Isaac Herzog put it, “these atrocious terrorists and a democratically elected government of Israel”, human rights groups have applauded the way that the ICC prosecutor is seeking to apply the law to both sides.

Btselm, a leading Israeli human rights organisation, said the warrants marked “Israel’s rapid decline into a moral abyss”.

“The international community is signalling to Israel that it can no longer maintain its policy of violence, killing and destruction without accountability,” it added.

Human rights campaigners have complained for many years that powerful Western countries, led by the US, turn a blind eye to Israeli violations of international law, even as they condemn and sanction other states who are not in their camp.

The actions being taken by Mr Khan and his team are, they believe, long overdue.

Mr Khan says that the three main leaders of Hamas committed war crimes that include extermination, murder, hostage-taking, rape and torture.

The men named are Yahya Sinwar, the Hamas leader in Gaza, Mohammed Deif, the commander of the Qassam Brigades, its military wing, and Ismail Haniyeh, head of the Hamas political bureau.

As part of their investigation, Karim Khan and his team interviewed victims and survivors of the 7 October attacks.

He said Hamas had assaulted fundamental human values: “the love within a family, the deepest bonds between a parent and a child were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness”.

Israel, Mr Khan said, does have the right to defend itself. But “unconscionable crimes” did not “absolve Israel of its obligation to comply with international humanitarian law”.

The failure to do that, he said, justified issuing warrants for the arrest of Mr Netanyahu and Defence Minister Yoav Gallant for crimes including starvation of civilians as a weapon of war, murder, extermination, and intentional attacks on civilians.

From the start of Israel’s response to the Hamas attacks of 7 October, President Biden has issued a series of rebukes to Israel, expressing concern that it was killing too many Palestinian civilians and destroying too much civilian infrastructure in Gaza.

But in a careful balancing act with a close ally which he has always supported, Mr Biden and his administration have not spelt out in public about what they mean.

Mr Khan makes his interpretation crystal clear. Israel, he says, has chosen criminal means to achieve its war aims in Gaza – “namely, intentionally causing death, starvation, great suffering, and serious injury” to civilians.

A panel of judges at the ICC now will consider whether to issue the arrest warrants. States signed up to the ICC’s Rome Statute would then be obliged to detain the men if they had the chance.

The 124 signatories do not include Russia, China and the US. Israel has not signed either.

But the ICC has ruled that it does have legal authority to prosecute criminal acts in the war because the Palestinians are signatories.

If the arrest warrants are issued, it would mean that Mr Netanyahu, Israel’s longest-serving prime minister, would not be able to visit close Western allies without risking arrest.

UK Prime Minister Rishi Sunak said the ICC’s actions were “not helpful to reaching a pause in the fighting, getting hostages out or humanitarian aid in”. But if the warrants are issued, Britain would have to make the arrests, unless it could argue successfully that Mr Netanyahu had diplomatic immunity.

An all-important exception for Mr Netanyahu and Mr Gallant is the US. The White House believes the ICC does not have jurisdiction in the conflict, a position that might widen the split inside Joe Biden’s Democratic party over the war.

Progressives have already welcomed the ICC’s action. Staunch allies of Israel among the Democrats might support Republican moves to pass a law to sanction ICC officials or ban them from the US.

As rumours of impending indictments churned through Europe, America and the Middle East weeks ago, a group of Republican senators issued the kind of threat to Mr Khan and his staff that they might have heard in a movie.

“Target Israel and we will target you… you have been warned.”

Yoav Gallant would also be unable to travel freely. The words he used when announcing that Israel would besiege Gaza has been frequently quoted by critics of Israel’s conduct.

Two days after the Hamas attacks on 7 October, Mr Gallant said: “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed… we are fighting human animals and we are acting accordingly”.

Mr Khan writes in his statement that “Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival”.

Famine, he says, is present in parts of Gaza and imminent in others.

Israel denies there is a famine, claiming that food shortages are caused not by their siege – but by Hamas thefts and UN incompetence.

If an arrest warrant is granted for Ismail Haniyeh, the head of the Hamas political branch, he will have to think harder about his regular trips to meet senior Arab leaders. He is likely to spend much more time at his base in Qatar, which like Israel, did not sign the Rome Statute that set up the ICC.

The other two accused Hamas leaders, Yahya Sinwar and Mohammed Deif, are believed to be hiding somewhere inside Gaza. An arrest warrant does not add much to the pressures on them. Israel has been trying to kill them for the last seven months.

The warrant would also put Mr Netanyahu in a category of accused leaders that also includes Russian President Vladmir Putin, and late Colonel Muammar Gaddafi of Libya.

Mr Putin faces an arrest warrant for the unlawful deportation and transfer of children from Ukraine to Russia.

Before he was killed by his own people, Col Gaddafi’s arrest warrant was for murder and persecution of unarmed civilians.

It is not attractive company for Benjamin Netanyahu, the leader of a state that prides itself on its democracy.