ICC’s Arrest Warrant Request of Israeli and Hamas leaders – An Analysis

As mentioned by the International Criminal Court’s Chief Prosecutor Karim Khan after months of threatening statements: “this day has come”. He has sent requests to issue arrest warrants against Ismail Haniyeh, Mohammed Deif, and Yahya Sinwar of Hamas and also Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant of Israel on charges of war crimes and crimes against humanity.

A shock to the international order as the announcement is the first time since the founding of the ICC that Western officials are facing arrest. A further shock that the first officials from a Western country to be facing arrest are Jews. As such, one can understand PM Netanyahu’s statement, comparing the charges to a new “anti-Semitism”.

Nevertheless, as threatening as the announcement appears, there is a silver lining within the darkness.

1. Politicization of the Court. The ICC under the Rome Statute in 1997 was founded as an extraterritorial court to bring to trial war criminals from ratified member states whose own national courts aren’t strong enough to investigate their own leaders. As stated in Article 4 of the Rome Statute:

Article 4
Legal status and powers of the Court
1. The Court shall have international legal personality. It shall also have such legal
capacity as may be necessary for the exercise of its functions and the fulfilment of its
purposes.
2. The Court may exercise its functions and powers, as provided in this Statute, on the
territory of any State Party and, by special agreement, on the territory of any other
State. 

On February 21, 2021, the ICC determined in a novel decision that “Palestine” is a state, despite not having the required characteristics that usually define one (land, population, government). Additionally, it determined not only that there is a “Palestine” but that the territory of “Palestine” that provides it jurisdiction includes ALL of the territory aquired by Israel in the 1967 Six Day War: The entire West Bank, East Jerusalem, and the Gaza Strip. As such, the court has created a fait accompli, establishing a “State of Palestine” when one has not been established in practice and despite the persistent objection of Israel and the United States, whom believe that such a state can only be created through negotiations.

However, creating a recognized international entity without the proper frameworks of a state does not make Palestine a state. As such, Karim Khan is investigating crimes on the territory of a state that does not actually exist in practice. As such, the decision is intrinsically political as it skirts international legal principles. If the ICC is giving itself jurisdiction in “Palestine” despite the non-existence of “Palestine” in practice, it is creating itself a loophole to persecute a state, Israel, that is not a party to the Rome Statute. As Article 4, in line with international legal principle pacta sunt servanda, Israel is not bound by treaties in which it never ratified.

As such, the decision is inherently political. To accept it means to accept a “Palestine” and to accept that Israel is suddenly bound to a treaty it never signed nor ratified which attacks its sovereignty as an independent state. Such a precedence may create future trouble for the court and give ammunition to its critics that it is inherently a political court rather than one created with the authority of the states that ratified it. Long term, the decision could create more damage for the status of the court.

2) Hamas for the first time also being Indicted. Perhaps due to the strength of the hostage and October 07th victim families that approached Karim Khan, brought him to Israel in a private capacity in December, and showed him the devastation first hand, Hamas, FOR THE FIRST TIME, is being tried by an international court.

The significance is clearly shown in the current ICJ Genocide Case against Israel where the main defendant is Israel itself. Despite a statement demanding that the hostages be released, Hamas is not on trial at all.

Hamas being on the docket also brings forth light onto the brutal October 07th attacks that precipitated the current war. As mentioned by Karin Khan, the following is shared in his request for an arrest warrant:

On the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Yahya SINWAR (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail HANIYEH (Head of Hamas Political Bureau) bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023:

• Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;
• Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(I);
• Taking hostages as a war crime, contrary to article 8(2)(c)(iii);
• Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;
• Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;
• Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;
• Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and
• Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel. We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organisational policies. Some of these crimes, in our assessment, continue to this day.

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 perpetrated by Hamas (in particular its military wing, the al-Qassam Brigades) and other armed groups on 7 October 2023 and the taking of at least 245 hostages. As part of our investigations, my Office has interviewed victims and survivors, including former hostages and eyewitnesses from six major attack locations: Kfar Aza; Holit; the location of the Supernova Music Festival; Be’eri; Nir Oz; and Nahal Oz. The investigation also relies on evidence such as CCTV footage, authenticated audio, photo and video material, statements by Hamas members including the alleged perpetrators named above, and expert evidence.

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. We submit that these crimes could not have been committed without their actions. They are charged both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.

During my own visit to Kibbutz Be’eri and Kibbutz Kfar Aza, as well as to the site of Supernova Music Festival in Re’im, I saw the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today. Speaking with survivors, I heard how 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. These acts demand accountability.

My Office also submits there are reasonable grounds to believe that hostages taken from Israel have been kept in inhumane conditions, and that some have been subject to sexual violence, including rape, while being held in captivity. We have reached that conclusion based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors. My Office also continues to investigate reports of sexual violence committed on 7 October.

I wish to express my gratitude to the survivors, and the families of victims of the 7 October attacks, for their courage in coming forward to provide their accounts to my Office. We remain focused on further deepening our investigations of all crimes committed as part of these attacks and will continue to work with all partners to ensure that justice is delivered.

Despite the initial dismissal by Israel, this text amounts to the first time an international court has asked for an arrest warrant of Hamas, or a Palestinian terrorist group, for war crimes and crimes against humanity. While Palestine is not a state de jure, it also amounts to the jurisdictional headache they signed up for when they agreed to ratify the Rome Statute: that terrorist attacks stemming from its territory are also susceptible to investigation by the court. As Palestine has no real judicial system, and more so in the Gaza Strip, the issue of complementarity, or having “Palestine’s” judicial system investigate itself, does not apply. This means that Palestinian terrorists could now be arrested in member states and brought to the Hague to be placed on trial. One of those states is Jordan. Europe can no longer be a sanctuary for them. This in turn, helps Israel.

3. Lack of Faith in Israel’s Court System. By requesting arrest warrants for war crimes and crimes against humanity, Karim Khan is saying in parallel that he has no faith that Israel’s court system can investigate the October 07th War. According to Article 17:

Article 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine
that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction
over it, unless the State is unwilling or unable genuinely to carry out the
investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and
the State has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the State genuinely to
prosecute;

2. In order to determine unwillingness in a particular case, the Court shall consider,
having regard to the principles of due process recognized by international law, whether
one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision
was made for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court referred to in
article 5;
(b) There has been an unjustified delay in the proceedings which in the
circumstances is inconsistent with an intent to bring the person concerned to
justice;
(c) The proceedings were not or are not being conducted independently or
impartially, and they were or are being conducted in a manner which, in the
circumstances, is inconsistent with an intent to bring the person concerned to
justice.
3. In order to determine inability in a particular case, the Court shall consider whether,
due to a total or substantial collapse or unavailability of its national judicial system,
the State is unable to obtain the accused or the necessary evidence and testimony or
otherwise unable to carry out its proceedings.

To be sure, both the October 07th attack response and the subsequent war demand review. Despite claims that Israel has “the most moral army in the world”, what the eye of this writer has seen is a human army that is susceptible to mistakes. What is the internal mechanism for investigating the conduct of the war? Many cases are currently under investigation internally by the Israeli Defense Forces. Certain clear mishaps including the World Central Kitchen (WCK) convoy attack were not only investigated, but remidial actions taken.

However, the war brings about a central quagmire within Israel. When will the leadership itself be investigated for October 07th and actions during the subsequent war? Netanyahu has said many times that a time for accountability will come, but after the war has concluded. However, with the war not near conclusion, and may not conclude anytime in the near term, is there any way to investigate the failures, not only of Netanyahu himself, but with members of the war cabinet? Many issues, including among others the strategy to enter territory, defeat Hamas, and then withdraw, allowing the enemy to regroup, should be investigated.

Attorney General Gali Baharav Miara is in a situation to launch a major review of Israel’s leadership’s handling of the war. However, she is unlikely to do so for political reasons. The Supreme Court could also take on a case in a petition from a human rights group; however, despite claims that it is an interventionist court during the attempted judicial reform revolution of last year, is unlikely to supercede and investigate the executive in the near term.

However, a commission of inquiry to investigate conduct could be what is required to question the courts intervention. Such commissions are not unprecedented in Israeli history. The Sabra and Shatila Massacre in 1982 led to the Kahan Commission, despite Israel continuing to wage the First Lebanon War.

For national health such a national inquiry will help us move forward and lead towards more effective war policy in the future. It will also show that Israel can investigate itself.

4. A Move Against Bibi Politically. Karim Khan may be attempting to delve into Israeli domestic politics by going after Prime Minster Benjamin Netanyahu and his Likud Defense Minsiter Yoav Galant. What has made Netanyahu extremely popular in Israel in the past was his ability to be “on a league of his own” internationally. Now with a criminal arrest warrant, he will be limited largely to the United States. As will Yoav Gallant.

It is important to note that Karim Khan did not target the third member of the War Council: Benny Gantz. He is as guilty for determining policy as the two future defendants. Additionally, no member of the IDF senior staff including the Chief of Staff was mentioned in the statement.

Not being under investigation of the court may be an attempt by Karim Khan to interfere in Israeli domestic politics. By not being under investigation and likely an arrest warrant, Benny Gantz, with his centrist allies, already leading in most domestic public opinion polls, can be perceived as being pushed as a preferred alternative to the current Netanyahu administration.

As such, while the move will give Netanyahu a brief popularity push (106 MKs signed a letter against the ICC request including some of the PMs worst critics), long term a Netanyahu that cannot attend many international forums, is in a league with company of President Putin of Russia will weigh down on the Israeli public. No longer truly Mr. Security, his league is now receiving a direct blow. Will he survive? Time will tell. It will however never be the same.

5. Moral Equivalence of Israel and Hamas

By putting Israeli and Hamas leaders in the same speech, Karim Khan seems to be giving moral equivalence between Israel, a recognized state by the majority of the world’s nations, and Hamas, a terrorist entity, lacking such legitimacy. Additionally the very aims are different between the parties with Hamas planning the eventual destruction of Israel and Israel launching a defensive war to eliminate the Hamas group.

Are Hamas and Israel the same? Many around the world, based on the wave of anti-Israel sentiment would prefer the genocidal Hamas to win and Israel, the result of the Jewish national self determination for millenia, to be destroyed. The world has largely forgotten the League of Nations mandate after World War One to establish a national home for the Jewish people based on inalienable rights to the land, and the Partition Plan in 1947. Many, including from allied states, simply do not understand the Jewish narrative or why Israel exists and simply see it as surplanting a “native” Palestine that never in fact existed.

Let’s compare the Hamas Charter and the Israeli Declaration of Independence:

Hamas:

Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it” (The Martyr, Imam Hassan al-Banna, of blessed memory).

 The Islamic Resistance Movement emerged to carry out its role through striving for the sake of its Creator, its arms intertwined with those of all the fighters for the liberation of Palestine. The spirits of its fighters meet with the spirits of all the fighters who have sacrificed their lives on the soil of Palestine, ever since it was conquered by the companions of the Prophet, Allah bless him and grant him salvation, and until this day.

This Covenant of the Islamic Resistance Movement (HAMAS), clarifies its picture, reveals its identity, outlines its stand, explains its aims, speaks about its hopes, and calls for its support, adoption and joining its ranks. Our struggle against the Jews is very great and very serious. It needs all sincere efforts. It is a step that inevitably should be followed by other steps. The Movement is but one squadron that should be supported by more and more squadrons from this vast Arab and Islamic world, until the enemy is vanquished and Allah’s victory is realised.

Israel:

The Land of Israel] was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.

After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom.

Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland. In recent decades they returned in their masses. Pioneers, ma’pilim [(Hebrew) – immigrants coming to Eretz-Israel in defiance of restrictive legislation] and defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, and created a thriving community controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country’s inhabitants, and aspiring towards independent nationhood.

In the year 5657 (1897), at the summons of the spiritual father of the Jewish State, Theodore Herzl, the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country.

This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its National Home.

This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.

From a Public Relations perspective the optics are disasterous and the court’s “moral equivalence” is a major red flag of a need to retake the narrative worldwide.