The Politics of the arrest warrants by the International Criminal Court

 The Politics of the arrest warrants for Prime Minister Netanyahu and Defense Minister Gallant by the International Criminal Court

I.     The Etiology of the Rome Statute 

After World War II the Nazi leadership were tried for War Crimes, Crimes Against Humanity, Crimes against Peace, and conspiracy to commit any of the aforementioned,i based on the London Charter. The Rome Treaty’s (“ICC (International Criminal Court) statute”) purpose was to replace a Nuremberg type Trial Proceeding.

The Rome Treaty has not been executed or ratified by the United States, Israel, the Russian Federation, China, or India. Holding leadership of a State (country) responsible for a treaty is absurd when the State has not executed the treaty. Most treaties are either bilateral or multi-lateral, in other words, a contractual relationship between two or more parties.

To find a contractual relationship without a meeting of the minds, by words or actions, has required a large exercise of creativity by the International Criminal Court (“ICC”).

Indeed, it is argued, that finding a contractual relationship between a non-assenting party turns both domestic law (the law of contracts in the United States) and customary international law on its head.

Legally speaking the ICC lacks jurisdiction and violates its core principle of complementarity.

The Office of the Prosecutor is the moving party representing the Assembly of State Parties (“ASP”). The ASP are the 124 signatories to the treaty and the funders of the ICC.

II.    The Office of the Prosecutor

A.   Purpose

The Office of the Prosecutor (OTP) is meant to be independent of the ICC. The current Chief Prosecutor is Karim Khan. Each prosecutor is elected by the ASP for a term of nine years.

The basis of his jurisdiction is genocide, crimes against humanity, the crime of aggression and war crimes. These are the core criminal crimes of the Rome Treaty. Mr. Khan’s responsibility is to determine and prosecute such crimes of the individuals most responsible for those crimes.

B.   Complementarity 

The ICC is a court of secondary jurisdiction. That means where a state has a functioning and robust judiciary capable of investigating itself, the ICC lacks jurisdiction.

Twenty-two years, ten convictions, and two billion euros later the sole focus of the ICC has been on African warlords in countries without any functioning judiciary at all or one that is considered robust.

Complementarity has been a central pillar of the ICC.

C.   Jurisdiction 

Under Article 13 of the ICC statute the OTP “must carry out an independent and impartial evaluation” before deciding to proceed.ii

A referral by the United Nations Security Council (“UNSC”);

The Court may initiate an investigation on its own motion (proprio motu);

A State Party to the ICC may refer a situation to the ICC for investigation;

By submission of a declaration of a national who has been subjected to a core crime on the territory of the national.

D. The current warrants against Netanyahu and Gallant are defectiveiii

The current warrants against Israeli leadership are defective for (1) failure to adhere to the principle of complementarity; (2) for lack of jurisdiction (a) Israel is not a signatory to the treaty; (b) “Palestine” is not a state within the meaning of the Montevideo criteria which determines statehood; (c) the prosecutor failed to carry out an independent and impartial investigation; (d) the prosecutor is acting ultra vires out of political motivation. 

1. Failure to adhere to the principle of complementarity 

As referenced above there has been abject failure to adhere to the principle of complementarity. Israel has a robust judiciary, and its Supreme Court is highly respected internationally and by a plurality of Israeli citizens. A former President of the Israeli Supreme Court, Aharon Barak, recently served as an ad hoc judge on the ICJ (International Court of Justice) panel and is highly respected as an international jurist. The current Supreme Court has as an associate justice who is an Israeli Arab.

Israel can investigate herself for war crimes. She can also appoint an independent commission of inquiry. The expectation of the appointment of an independent commission of inquiry in the middle of a war is outrageous because Israeli governance is focused on the existential threat of an asymmetric attack on her population via two terrorist organizations, inter alia, Hamas and Hezbollah, which are proxies of the Iranian regime.

It would be like the United States appointing a commission of inquiry after the bombing of Pearl Harbor and the decision to declare war on Japan.

We saw an independent commission of inquiry over Mavi Marmara with the Palmer Commission. (A Turkish NGO (Non-Governmental Organization) sent a flotilla to breach the blockade of Gaza in international waters). The Palmer Commission exonerated Israel.

Moreover, this author questions the application of international criminal law on the United States military as a violation of the United States Constitution.iv The third branch of government as laid out in the United States Constitution is one of the most robust judicial systems in the world.

While Israel is not a Constitutional Republic but rather a parliamentary democracy, its judicial system is equally unassailable. Indeed, when the Israeli parliament (the Knesset) sought to strike down the ability of the Israeli Supreme Court to invoke the reasonableness clause, the Knesset’s decision was declared unlawful by the Supreme Court and the decision has been followed by the Israeli government.

Karim Khan, in his statement says: “Complementarity, however, requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham. It requires thorough investigations at all levels addressing the policies and actions underlying these applications.”

In a self-serving, syllogistic statement Khan has alleged that Israel refuses to engage in an independent and impartial investigation. He makes this statement subjectively, without foundation, and if this were true, the Khan’s subjective opinion would swallow the concept of Complementarity in its entirety.

In its entire history of convictions and acquittals (14 cases over 22 years, and ten convictions and four acquittals)v the ICC has never prosecuted leadership against a country with a robust legal system such as Israel.

2.  Lack of Jurisdiction

Neither Israel nor the United States are signatories to the Rome Treaty, which under a logical, common sense, perspective would deny the ICC jurisdiction.

As stated above, in section II.C, the ICC accepted jurisdiction under 12(4) and granted “Palestine” jurisdiction. “Palestine” has also been granted non-member observer status to the United Nations.

But is “Palestine” really a state? Under the criteria for statehood certain conditions need to be met such as territorial integrity.

(A.)   Lack of Defined territorial borders.

The PA lacks a defined territory under its control because the Interim Agreement of 1993 provides that the West Bank and Gaza Strip will remain undefined areas until a final status agreement is achieved and, in the meantime, any territorial boundaries are subject to change by Israeli redeployment. Interim Agreement, art. XI, para. 2, 36 I.L.M. at 561; art. XIII, para. 5,.36 I.L.M. at 563. See also, Declaration of Principles on Interim. Self-Government Arrangements, art. V, para. 3, Sept.13, 1993, available at, 32 I.L.M. 1525, 1529. (1993) See, OSLO, OSLO II, 1995.vi

In simple terms the future borders according to the interim agreement of 1993, left the the territorial borders subject to negotiation. From a common sense perspective “Palestine” also lacks common borders because the West Bank is controlled by the Palestinian Authority (PA), Gaza was controlled by Hamas, and East Jerusalem by Israel.

(B.)  Permanent Population

Logically, since there are no defined borders there can be no permanent population. If Gazans live in Gaza and are governed by Hamas, and Gazans live in the West Bank which is governed by the PA, and East Jerusalem by Israel, there cannot be a permanent population.vii

(C.)   Governmental Control 

“The third criterion requires some authority that exercises governmental functions and is able to represent the entity in international relations. Restatement (Third) of Foreign Relations Law § 201 cmt(d). To satisfy this standard, a State must have the sole right to make decisions in all economic, political, and financial matters. Austro-German Customs Union Case, 1931 P.C.I.J. (ser. A/B) No. 41, at 45 (1931). This control must be absolute and not subordinate, meaning that there cannot be even nominal subordination to an outside governmental authority. Karl Doehring, 10 Encyclopedia of Public International Law, 423, 426 (R. Bernhardt, ed., 1981). The PA argues that it meets this criterion because the PA and PLO make up the current functioning government of Palestine. Mem. in Supp. of Palestinian Defs.’ Rule 12(b)(1) Mot. to Dismiss the Am. Compl., at 7. However, this argument must also fail because the PA lacks sovereign governmental control over all areas of the West Bank or Gaza Strip.” Fn. VII.

(D.)    International Relations

The final criterion requires competence from within the entity’s legal system and the political, technical, and financial capabilities to conduct international relations with other states. Restatement (Third) of Foreign Relations Law § 201 cmt(e). The entity must also be able to fulfill the obligations that correspond to such agreements. This is difficult, if not impossible, when the entity lacks a defined territory under unified governmental control. See, Klinghoffer, 937 F.2d at 48; Knox, 2004 U.S. Dist. LEXIS 3128, 2004 WL at *11. Ibid.

(E.)   Human Rights Law 

A more modern development under international law for Statehood is compliance with Human Rights Law. It is undisputed that in Gaza and the West Bank, women, and minorities are denied human rights.

Women are treated as property or chattel, and minorities such as the LGBT community are murdered in a medi-evil manner such as being stoned to death or thrown off roof tops.

The first four criteria are based on the the 1933 Montevideo Convention on the Rights and Duties of States as articulated in the United States in Section 201 of the Restatement Third on Foreign Relations Law.

It is undisputed that the criteria under international law under the Restatement Third of Foreign Relations “Palestine” fails to meet the criteria of Statehood.

(i)  The ICCs (International Criminal Court) Approach 

Because the criteria are articulated on the 1933 Montevideo Convention and Section 201 on the Restatement Third of Foreign Relations would never be met for “Palestine”; in a political move the ICC decided that it would be unnecessary for the Court to determine statehood.

The pretrial chamber looked at the statute, regulations and rules of procedure and evidence and found no definition of state. It therefore concluded that a state was a party that made application under Article 12(2)(2)/(C)(4), supra, and it was unnecessary to determine whether a state fit the criteria of the Restatement Third of Foreign Relations.

Despite over 85 years of the definition of a state as articulated above based on the Montevideo Convention (territorial integrity, permanent population, governance, the ability to conduct foreign relations), the pretrial chamber ignored customary international law to reach a desired outcome. To argue this is “legal science” exceeds the bounds of reasons and the ICC’s action is born of political motivation.

(ii)  The OSLO accords and the Interim Agreement (OSLO II) 

The United Kingdom and the United States are strong advocates of a two-state solution. Here the more relevant party is the United Kingdom as it is a founding member of the ICC, and the United States is not a member.

The conservative government on the United Kingdom was staunchly against the issuance of the warrants and was requested to brief the issue of jurisdiction by July 12, 2024, before the pretrial chamber in a ‘friend of the court’ brief. There were elections in the United Kingdom and the ruling party is now the labor party.

According to World Israel News, the new foreign secretary of the United Kingdom, stated that the United Kingdom is a strong advocate of the two-state solution and would file a friend of the Cour brief by July 26, 2024. He has now flip flopped and the United Kingdom did not file a brief.

The key issue is that interim agreement “Palestine” does not have Criminal jurisdiction over Israeli nationals in the occupied Palestinian Territories.viii

Irrespective of the malleability of international criminal law to fit a result, it could by many be perceived that granting “Palestine” jurisdiction over Israeli nationals is a material breach of OSLO II rendering the two-state solution dead. The argument should also be made that a decision of this type (rendering “Palestine” jurisdiction over Israeli nationals) undermines the ability of the UNSC to ensure peace and security under Chapter VII of the UN Charter.

There is extensive cooperation between the ICC and the UN. To argue that the ICC is an independent body is specious.

(iii) Universal Jurisdiction 

To address the issue of jurisdiction without addressing the issue of Universal Jurisdiction would be remiss.

Univeral Jurisdiction stands for whether a State is a party to the Rome Treaty or not, for crimes which are just cogens (fundamental principles of international law which preempt any treaty) there is jurisdiction.

States such as Germany and the Czech Republic argue that that the Court would have Universal Jurisdiction over the core crimes of genocide, crimes against humanity and war crimes, and anyone on the territory of State Party, by way of example Germany, would be subject to arrest. Simply said Germany would arrest Prime Minister Netanyahu and Defense Minister Gallant.

Arresting a democratically elected Prime Minister in a country where the Wannsee conference took place is ugly. The Nazi elite gathered to create the “final solution” for the Jewish problem in January 1942 at Wannsee.

The German foreign minister has stated that Germany would respect International Law and arrest Prime Minister Netanyahu. The optics and the practicality of such an action are obscene. For a country which intentionally and systematically murdered 6,000,000 Jews to arrest the Jewish Prime Minister for defending his country against the largest genocide of Jews since WWII is ludicrous. As illustrated in this article the arrest warrants are politically motivated.

The United States has strongly rejected the concept of universal jurisdiction and does not adhere to it.

(iv) The Prosecutor has failed to carry out the plain meaning of the ICC statute, that the OTP failed to carry out an independent and impartial investigation.

(a) Independent Investigation

On May 20, 2024, the ICC’s Karim Khan requested the issuance of warrants to arrest the leaders of Israel and Hamas.

Khan cancelled a mission to collect evidence in the region. He was planning to visit Gaza and Israel to gather on-site evidence of war crimes and provide Israeli leadership an opportunity to present the Israeli position on the allegations of war crimes.ix

Instead of the on-site investigation the arrest warrants are now sitting with Pre-Trial Chamber I, with judges from Romania, France, and Benin to determine if there are reasonable grounds to proceed with the alleged crimes.

(b)  Impartial Investigation

The prosecutor has power under the Rules of Procedure to appoint “experts” to advise him on the arrest warrants.

The experts on the panel are former ICC Judge Adrian Fulford, former ICTY prosecutor Theodor Moron, Amal Clooney, Danny Friedman, Baroness Helena Kennedy and Elizabeth Wilmhurst.

In an op-ed he published in the Wall Street Journal, Professor Eugene Kontorovich exposed that at least some of the experts mentioned by Khan had expressed negative views toward Israel long before the outbreak of the war.

“For example, Prof. Kevin Jon Heller, upon whom Prosecutor Khan described as “independent,” tweeted in 2020 that “two criminals (Donald Trump and Benjamin Netanyahu) are conspiring to commit criminal acts against Palestine and the Palestinians.” Heller has served as a special adviser on war crimes to Chief Prosecutor Khan for two years. On other occasions, Heller wrote that Israel practices “apartheid” against the Palestinians. In 2015, he wrote that Israel is “committed to systematically depriving the innocent of their most basic rights,” and is guilty of the “systematic oppression of the Palestinians.” Heller dismissed arguments in favor of Israel as “fake law and propaganda.”

Another adviser relied upon by Prosecutor Khan is Baroness Helena Kennedy, a member of the Labour Party and the British House of Lords. Kennedy had called for the ICC to prosecute Israel long before the Gaza war began. In March, she wrote, “The International Court of Justice (ICJ) has given a warning to Israel; now is the time for all of us to say: enough is enough.” Kennedy accused Israel of war crimes since the beginning of the war, and she also claimed that there is no safe place in the Gaza Strip.

Another member of the advisory panel to the chief prosecutor is a lawyer named Danny Friedman, who admitted that he defines himself as a lawyer who happens to be Jewish, except when he condemns Israel – then he puts his Jewishness at the forefront. Ten days after Hamas’s heinous attack, and before the ground operation had begun, Friedman had already accused Israel of war crimes. In November, he argued that international law required Israel to immediately cease its campaign, even while Hamas was holding hostages.

Kontorovich noted that the bias of these experts was systematic and completely one-sided. The prosecutor accused Israel of committing war crimes based on the advice of people who, when chosen, had already reached that conclusion. He emphasized that the prosecutor’s reliance on biased advisers contradicts the court’s own rules. “The ICC’s Code of Conduct for Prosecutors requires them to ‘refrain from any activity which is likely to negatively affect the confidence of others in the independence or integrity of the Office.’ The Code of Conduct says the ‘impartiality’ section requires ‘refraining from expressing an opinion that could, objectively, adversely affect the required impartiality, whether through communications media, in writing or public addresses.’ (Emphasis added.) These rules don’t apply to outside experts, but by selecting and relying on panel advisers who don’t meet the ICC’s own definition of impartiality, the prosecutor undermines his own.”

Kantorovich stressed that Prosecutor Khan intentionally chose only advisers known not to accept Israel’s position regarding the court’s lack of jurisdiction. “It would have been easy for Mr. Khan to find experts with similar views who hadn’t made their prejudices public. That Mr. Khan chose these advisers indicates that he valued certainty in the results above even the appearance of impartiality.”

Amal Clooney (Alammudin) is a Druze Lebanese rabid Anti-Semite and English Barrister. Her Jew hatred goes back many years. “Rabbi Shmuley Boteach, whom The Washington Post and Newsweek call “the most famous Rabbi in America,” is one of the world’s most respected values spiritual voices. An international best-selling author of 36 books, Rabbi Shmuley’s works have been serialized in major international publications and translated into 20 languages. “x

Rabbi Shmuley writes on Instagram of Amal Clooney: “Amal Clooney is an unrepentant antisemite who destroyed any credibility as a human rights activist and attorney. I had the great honor of serving as Rabbi at Oxford University for 11 years where I built the second largest student organization in the university’s nearly 1000-year history. I was around some of the greatest legal minds of our time, including so many brilliant women. But for Clooney, we know if we’re not because of any important publication or award but for marrying Hollywood royalty. We otherwise never would’ve even heard of the utterly unaccomplished Clooney, who is famous not for her accomplishments as a female legal scholar, but for her husband’s looks and talent in movies. It’s time to tell antisemites like her to simply and finally just leave Israel alone.”xi

In 2015 when appointed to the UN HRC Alamuddin stated that:

“I am horrified by the situation in the occupied Gaza Strip, particularly the civilian casualties that have been caused, and strongly believe that there should be an independent investigation and accountability for crimes that have been committed.”xii

After the public announcement of the prosecutor’s intent to have the warrants issued  Congress and the Executive Branch agreed to sanction the ICC and work together to reach this goal.

On June 4, the House of Representatives passed legislation to sanction the ICC.

““We are very pleased that Speaker Johnson moved forward with sanctions against the International Criminal Court for the outrageous actions against the State of Israel.

“This measure received bipartisan support in the House, and we urge Senate Democratic Leader Schumer to immediately bring this legislation to the floor for a vote in the Senate.

“We support the House of Representatives’ proposal because without strong action now, it is our opinion that the ICC will eventually come after U.S. personnel.xiii

George Clooney a close friend of former President Obama was scheduled to host a huge fundraiser for the Biden Campaign June 15, 2024, featuring the former president, Clooney himself and Julia Roberts.

When the issue of sanctions was passed by the House Clooney flew into a frenzied panic and made calls to see that his wife would not be sanctioned.

On June 6, 2024, “Clooney called Steve Ricchetti, counselor to the president, to express concern about Biden’s denunciation of arrest warrants sought by ICC prosecutors for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, especially his use of the word “outrageous.” The prosecutors also sought warrants for top Hamas leaders.

The actor was also upset about the administration’s initial openness to imposing sanctions on the ICC because his wife might be subject to the penalties, the people said, speaking on the condition of anonymity to discuss a private conversation.xiv

The fundraiser was held June 15, 2024, without the presence of the Clooneys. The Whitehouse also decided that sanctions were not the best means of stopping the ICC.

The flip flop is is an ironic twist because President Biden and Secretary of State Blinken both declared that ICC’s action was “outrageous.”

Under former President Trump executive orders sanctioning the ICC were effective in stopping the issuance of warrants against US personnel for the United States Action in Afghanistan. This action included asset freezes and visa bans.”xv

The Bush Administration adopted a multipronged attack on the ICC and the OTP decided that former President Bush did not meet the ‘threshold’ to open an investigation for actions in Iraq.

There are two conclusions to be drawn from this section on impartiality, the first is that panel of advisors has not been impartial but has long wanted to see the Prime Minister of Israel in the dock, and the second is that in spite of the fact that the United States is not a party to the Rome Treaty the United States yields an enormous amount of influence over the ICC and could see that the warrants are withdrawn. As stated herein, she has quashed an investigation and the issuance of warrants in the past.

(d) The Prosecutor is acting out of Political Motivation and his actions are Ultra Vires 

Through the discussion in this article Karim Khan has failed to adhere to the central pillar of the ICC, complementarity leaving the pillar to a subjective standard, in this case political animus to Israel’s robust judicial system.

In a contradictory move the ICC fails to address the issue of OSLO and vies for the West’s position of a two-solution and yet ignores the interim agreement (OSLO II) which denies the ‘Palestinians’ authority over the Israeli population. This issue does not cut both ways, either OSLO is the binding document for the two State Solution or by breaching the material condition (no Palestinian control of over an Israeli population) Khan is declaring the two state solution dead.

The failure of the ICC (which did not occur under Khan) to address the criteria of Statehood (Montevideo, Restatement of Foreign Relations) is legal acrobatics which lacks scientific methodology and is legally devoid of merit.

Khan also failed, according to any standard of law, to initiate an investigation into war crimes in Israel and to act impartiality. This makes his actions ultra vires or illegal as his activity is beyond the scope of the ICC statute. 

The greatest danger is the creation moral equivalence between a legitimately elected government and its Prime Minister, and a terrorist entity as recognized by the Western World. The motivation is clear; Holocaust Revision to equate the mass murder of 6,000,000 Jewish souls through the planned extermination of European Jewry with that of a terrorist organization in an attempt to rewrite history. As a public relations stunt is has worked to a degree through social media to say, ‘look Netanyahu and Israel are the same as Hitler and the Nazi’s plan of extermination’ it is demagoguery at its best and rabid Antisemitism its worst.

The accusations in the warrant have been debunked. Clooney’s role of mass starvation of Gazans has been disproved.xvi In a defensive action of an attack on a sovereign country (Israel) there has been no intent to eliminate the Gazan population as occurred with Nazi Germany at the Wannsee Conference of 1942.

Since there has been a failure to adhere to the pillars of the ICC and failure to impartially investigate the crimes as alleged in the warrant, the arrest warrants should be quashed.

III. Conclusion 

In the same vein as the USSR statement before the UNGA that Zionism is racism, the hate-fest of the Durban Conferences, this is another attempt to delegitimize the Jewish nation State.

But this is more significant because the OTP, Karim Khan, it trying to rewrite history in the form of a type of Holocaust Revisionism by creating a moral equivalence between a democratically elected government that adheres to Western values and a terrorist organization that uses asymmetric warfare. The idea or concept that Israel is guilty of war crimes and is intentionally starving Gazans’ borders on the absurd.

The argument that United States is a non-party to the Rome Treaty is a truism but irrelevant. The position of the United States towards the Rome Treaty has been lukewarm under former President Bill Clinton to warmer under Biden-Harris. What is true is that had the Biden-Harris wanted to quash the issuance of the warrants it could have happened. Under the investigation of former President Bush, the OTP stated that the allegations of war crimes did not meet the threshold to open an inquiry, and under former President Trump, sanctions were issued by Executive Order against the former prosecutor Ben Souda for the war in Afghanistan. In both cases the inquiries went away.

Whatever the outcome of the Pretrial Chamber it will be political. The maxim, ‘while everything changes it all stays the same,’ is appropriate here.

Endnotes

i https://humanrightscommitments.ca/2015/12/history-of-the-rome-statute-of-the-international-criminal-court/ ”Following World War II, the Allies set up the Nuremberg and Tokyo tribunals to try war criminals from Nazi Germany and Japan. Efforts to create a permanent court were pursued at the United Nations….” 

ii ICC Statute Arts. 45, 54. 

iii THE 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 ssubmits 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.I again reiterate my call for the immediate release of all hostages taken from Israel and for their safe return to their families. This is a fundamental requirement of international humanitarian law.Benjamin Netanyahu, Yoav GallantOn the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel, bear criminal responsibility for  the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023:
  • Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
  • Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
  • Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
  • Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
  • Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
  • Persecution as a crime against humanity contrary to article 7(1)(h);
  • Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

  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 (together with other Palestinian Armed Groups) running in parallel. We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy. These crimes, in our assessment, continue to this day.

  My Office submits that the evidence we have collected, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group, shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.

  This occurred through the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods and then by arbitrarily restricting the transfer of essential supplies – including food and medicine – through the border crossings after they were reopened. The siege also included cutting off cross-border water pipelines from Israel to Gaza – Gazans’ principal source of clean water – for a prolonged period beginning 9 October 2023, and cutting off and hindering electricity supplies from at least 8 October 2023 until today. This took place alongside other attacks on civilians, including those queuing for food; obstruction of aid delivery by humanitarian agencies; and attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza.

  My Office submits that these acts were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.

  The effects of the use of starvation as a method of warfare, together with other attacks and collective punishment against the civilian population of Gaza are acute, visible and widely known, and have been confirmed by multiple witnesses interviewed by my Office, including local and international medical doctors. They include malnutrition, dehydration, profound suffering and an increasing number of deaths among the Palestinian population, including babies, other children, and women.

  Famine is present in some areas of Gaza and is imminent in other areas. As UN Secretary-General António Guterres warned more than two months ago, “1.1 million people in Gaza are facing catastrophic hunger – the highest number of people ever recorded – anywhere, anytime” as a result of an “entirely manmade disaster”. Today, my Office seeks to charge two of those most responsible, NETANYAHU and GALLANT, both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute. 

  Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.   

  Since last year, in Ramallah, in Cairo, in Israel and in Rafah, I have consistently emphasised that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale. I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences. I could not have been clearer.

  As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come.

  In presenting these applications for arrest warrants, my Office is acting pursuant to its mandate under the Rome Statute. On 5 February 2021, Pre-Trial Chamber I decided that the Court can exercise its criminal jurisdiction in the Situation in the State of Palestine and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. This mandate is ongoing and includes the escalation of hostilities and violence since 7 October 2023. My Office also has jurisdiction over crimes committed by nationals of States Parties and by the nationals of non-States Parties on the territory of a State Party.

  Today’s applications are the outcome of an independent and impartial investigation by my Office. Guided by our obligation to investigate incriminating and exonerating evidence equally, my Office has worked painstakingly to separate claims from facts and to soberly present conclusions based on evidence to the Pre-Trial Chamber.

  As an additional safeguard, I have also been grateful for the advice of a panel of experts in international law, an impartial group I convened to support the evidence review and legal analysis in relation to these arrest warrant applications. The Panel is composed of experts of immense standing in international humanitarian law and international criminal law, including  Sir Adrian Fulford PC, former Lord Justice of Appeal and former International Criminal Court Judge; Baroness Helena Kennedy KC, President of the International Bar Association’s Human Rights Institute; Elizabeth Wilmshurst CMG KC, former Deputy Legal Adviser at the UK Foreign and Commonwealth Office; Danny Friedman KC; and two of my Special Advisers – Amal Clooney and His Excellency Judge Theodor Meron CMG. This independent expert analysis has supported and strengthened the applications filed today by my Office. I have also been grateful for the contributions of a number of my other Special Advisers to this review, particularly Adama Dieng and Professor Kevin Jon Heller. 

  Today we once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity. Nothing can justify wilfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians. 

  The independent judges of the International Criminal Court are the sole arbiters as to whether the necessary standard for the issuance of warrants of arrest has been met. Should they grant my applications and issue the requested warrants, I will then work closely with the Registrar in all efforts to apprehend the named individuals. I count on all States Parties to the Rome Statute to take these applications and the subsequent judicial decision with the same seriousness they have shown in other Situations, meeting their obligations under the Statute. I also stand ready to work with non-States Parties in our common pursuit of accountability. 

  It is critical in this moment that my Office and all parts of the Court, including its independent judges, are permitted to conduct their work with full independence and impartiality. I insist that all attempts to impede, intimidate or improperly influence the officials of this Court must cease immediately. My Office will not hesitate to act pursuant to article 70 of the Rome Statute if such conduct continues. 

  I remain deeply concerned about ongoing allegations and emerging evidence of international crimes occurring in Israel, Gaza and the West Bank. Our investigation continues. My Office is advancing multiple and interconnected additional lines of inquiry, including concerning reports of sexual violence during the 7 October attacks, and in relation to the large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza. I encourage those with relevant information to contact my Office and to submit information via OTP Link. 

  My Office will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met. I renew my call for all parties in the current conflict to comply with the law now. 

  I also wish to emphasise that the principle of complementarity, which is at the heart of the Rome Statute, will continue to be assessed by my Office as we take action in relation to the above-listed alleged crimes and alleged perpetrators and move forward with other lines of inquiry. Complementarity, however, requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham. It requires thorough investigations at all levels addressing the policies and actions underlying these applications. 

  Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, we will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment. 

  Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my Office and the Court. This is how we will prove, tangibly, that the lives of all human beings have equal value.  

  For further details on “preliminary examinations” and “situations and cases” before the Court, click here, and here. 

  Source: Office of the Prosecutor | Contact: OTPNewsDesk@icc-cpi.int 

  iv https://scholarship.law.upenn.edu/cgi/viewcontent.cgi? article=2450&context=faculty_scholarship at fn. 54.  

  v Cf. Nuremberg Trials where in less than one year 21 defendants appeared in the Court. Of the 21 defendants 19 were convicted and three were acquitted

vi Omitted

vii  See Klinghoffer, 937 F.2d at 47-48 (holding that because the PA lacks a defined territory, it cannot have a permanent population within the meaning of the Restatement criteria).  Estates of Ungar ex rel. Strachman v. Palestinian Auth., (2004) 315 F. Supp. 2d 164, 180  

viii A/51/889, Israeli-Palestinian Interim Agreement on the West Bank, and the Gaza Strip (“Oslo II”) (Sept. 28, 1995). 

ix https://www.jpost.com/international/article-809068

x https://www.shmuley.com/ 

xi https://www.instagram.com/rabbishmuley/p/C7QilWTM2o2/

xii https://nypost.com/2015/01/15/george-clooney-has-a-problem-and-its-amal/

xiii https://www.foreign.senate.gov/press/rep/release/senators-applaud-house-effort-to-sanction-icc-after-actions-against-israel

xiv https://www.washingtonpost.com/politics/2024/06/06/george-clooney-biden-criminal-court-israel/

xv https://ccrjustice.org/factsheet-us-sanctions-international-criminal-court

xvi https://www.nationalreview.com/corner/the-gaza-famine-that-wasnt/; https://www.jns.org/the-gaza-famine-that-wasnt-is-being-used-against-israel/