Karim Khan, Chief Prosecutor of the International Criminal Court (ICC), asked the judges of this body to issue arrest warrants for crimes against humanity and war crimes against Yahya Sinwar (head of Hamas in Gaza), Mohammed Diab Ibrahim al-Masri ( Have asked for. Mohammed Deif, commander of Hamas’s military wing) and Ismail Haniyeh (head of Qatar-based Hamas political bureau), for crimes committed in Israeli and Palestinian territory since at least 7 October 2023.
Khan has also requested arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Galant for the same crimes committed in the Gaza Strip from October 8, 2023.
This petition is an important step in the effort to bring justice to victims of international crimes in Israel and Palestine.
What is the charge against him?
Sinwar, al-Masri and Haniyeh are accused of participating in the October 7 attacks on Israeli civilians, in which approximately 1,200 Israeli civilians were killed and at least 245 were taken hostage.
In addition, Hamas leaders are accused of other crimes in relation to the ongoing conflict in Gaza. These include:
Ariel Shalit/AP
In his statement, Khan said:
“I have witnessed the devastating impact of these attacks and the profound impact of the unconscionable crimes alleged in the applications filed. Talking to survivors, I have heard how the love within a family, the deepest bond between parent and child, was transformed into immeasurable pain by calculated cruelty and extreme insensitivity. These actions demand responsibilities.”
Khan also reported that his office conducted an extensive investigation, including field visits and interviews with survivors of the victims, and relied on evidence regarding the appalling conditions in which Israeli hostages were held in Gaza.
Netanyahu and Gallant are allegedly criminally responsible for a series of international crimes since Israel began military action against Hamas in Gaza on October 8, including:
Haitham Imad/EPA
The prosecutor stated that the alleged crimes:
“…were committed as part of a widespread and systematic attack against the Palestinian civilian population. “In our assessment these crimes are continuing today.”
Pointing to the terrible suffering of civilians in Gaza, including thousands of deaths, and devastating hunger, Khan alleged that the means Netanyahu and Gallant chose to pursue Israel’s military objectives in Gaza (intentional death, Starvation, great suffering and serious harm caused to the body or health of the civilian population are criminal.
What does this mean in practice?
The next step in this process is for the three judges of the ICC Pre-Trial Chamber to decide whether there are reasonable grounds to believe that war crimes and crimes against humanity have been committed. If yes, arrest warrants will be issued. It may take several months for judges to make a decision.
However, if arrest warrants are issued, it is highly unlikely that they will be executed. And if none of the accused can be arrested, there will be no trial because the International Criminal Court does not prosecute people in absentia.
So why is there no possibility of arrest of the accused? There are many reasons for this.
Firstly, no one would submit themselves for prosecution. Netanyahu was angered by Khan’s decision, calling it a “moral disgrace of historic scale” and accusing him of anti-Semitism.
Hamas issued a statement strongly condemning the issuance of arrest warrants against its leaders, claiming it “equates the victim with the executioner.”
Second, no accused is likely to be placed in a position to be arrested and handed over to the ICC. Israel did not sign the Rome Statute that established the ICC. Nor does its main ally, the United States. This would ensure that Netanyahu and Gallant can travel to the United States without fear of arrest.
For his part, Haniyeh is based in Qatar, which is also not a member of the ICC. You may have to limit your travel to other countries to avoid the risk of detention. The other two accused Hamas leaders are believed to be hiding in Gaza; they appear to be more at risk of being killed by Israeli forces than of being detained.
Although Palestine is a member state of the ICC and is therefore technically obliged to cooperate with the court, this is difficult to achieve in practice.
Third, the ICC depends on its member states to implement its functions. It has no independent police force or the ability to execute arrest warrants.
The ICC has 124 member states, while the United Nations has 193 member states. This disparity highlights the gap between what the ICC aims to achieve – namely, universal accountability for international crimes – and what it can achieve in practice when it lacks the support of joined or non-aligned countries. Is.
Peter DeJong/AP
What does this mean for the ICC?
This is the first time that prosecutors have brought charges against a head of state who is supported by Western countries.
This measure provoked the anticipated reaction from the United States. President Joe Biden called it “disgraceful” and said:
“…There is no possible equivalence between Israel and Hamas: we will always support Israel against threats to our security.”
But Khan stressed the importance of the ICC’s independence and impartiality as well as uniformity in the application of the law.
“No ordinary soldier, no commander, no civilian leader, no one can act with impunity.”
The ICC has previously confirmed its jurisdiction over the crimes allegedly committed by the five leaders. The Prosecutor relies on the Pre-Trial Chamber to issue arrest warrants based on the highly visible nature of the alleged crimes and the amount of evidence available to demonstrate reasonable grounds for prosecution.
The request for an arrest warrant undoubtedly complicates relations between Israel and its fellow ICC members. In such a politically charged context, it is appropriate to describe this effort as evidence of the international community’s commitment to ending impunity for international crimes.