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Nuts & Bolts of Int’l Criminal Court Arrest Warrant Applications for Senior Israeli Officials and Hamas Leaders

[Peace Palace, International Court of Justice | Wikimedia Commons]

(Editor’s Note: This article is part of our new symposium on the ICC and Israel-Hamas war.)

On Monday, May 20, 2024, International Criminal Court (ICC) head Prosecutor Karim Khan announced that his Office has applied for warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu, Israeli Minister of Defense Yoav Gallant, Hamas leader Yahya Sinwar, head of the Hamas Political Bureau Ismail Haniyeh, and Mohammed Diab Ibrahim al-Masri (better known as Mohammed Deif), the leader of Hamas’ military arm, the Al Qassem Brigades.


The Prosecutor is seeking the arrest of Netanyahu and Gallant as co-perpetrators of the war crime of starvation of civilians as a method of warfare and, in association with the starvation campaign (para. 22):


  • the war crimes of wilfully causing great suffering, or serious injury to body or health or cruel treatment, wilful killing or murder as a war crime, and intentionally directing attacks against civilians in Gaza, 

  • and the crimes against humanity of extermination or murder (including through starvation), persecution, and other inhumane acts. 

The co-perpetration allegation is based on Netanyahu and Gallant’s making essential contributions to a common plan to use starvation and other acts of violence against the Gazan civilian population as a means to eliminate Hamas and secure the return of hostages, as well as to inflict collective punishment. The Prosecutor also alleged the criminal liability of Netanyahu and Gallant under the doctrine of superior responsibility (more on what that means below).  


The Prosecutor is seeking the arrest of Sinwar, Deif, and Haniyeh as co-perpetrators of the crimes against humanity of extermination, murder, torture, rape and other acts of sexual violence in the context of captivity, and other inhumane acts, and of the war crimes of taking hostages, murder, torture, cruel treatment, and rape and other acts of sexual violence in the context of captivity. 


The co-perpetration allegation is based on Sinwar, Deif, and Haniyeh making essential contributions to a common plan to attack military bases in Israel, to attack and to kill civilians, and to take and detain hostages. The Prosecutor also alleges the liability of these Hamas leaders under the doctrine of superior responsibility and indicates that other modes of liability may be available.


This is a remarkably comprehensive set of allegations and represents an unprecedented level of transparency at this stage of a case at the ICC. The request for warrants is supplemented by a Report authored by a Panel of Experts in International Law, convened by the ICC Prosecutor in January 2024. The Panel included: Adrian Fulford, Judge Theodor Meron, Amal Clooney, Danny Friedman, Baroness Helena Kennedy, and Elizabeth Wilmshurst. It was supported by two academic advisers: Marko Milanovic and Sandesh Sivakumaran. The Panel’s conclusions were reached unanimously.


Building on Douglas Guilfoyle’s excellent analysis for Articles of War when rumors of imminent warrants began to circulate, this article explains the legal process, legal grounds, and greater significance of today’s announcement. 


Summary of key points:


  • Where things stand: To secure the warrants, the Prosecutor must now convince a Pre-Trial Chamber that there are “reasonable grounds to believe” the identified individuals perpetrated the alleged crimes. The precise timeline for Pre-Trial Chamber review remains uncertain. By way of comparison, the arrest warrants for Vladimir Putin and Maria Lvova-Belova were issued less than one month after the Prosecutor’s applications, but Omar al-Bashir’s first warrant took nine months. Notwithstanding the broad scope of the allegations, the Expert Panel notes that these are unlikely to be the last or only warrants requested in the Palestine situation (para. 11).

  • The allegations are credible: Reviewing the elements of the crimes alleged against Israeli officials and Hamas leaders and applying them to publicly known information in the conflict, it is likely the arrest warrants will be approved.

  • There are many reasons to start with starvation crimes: In addition to the robust evidence of starvation methods in Gaza and the clear implication of those at the top of the Israeli government in that violation, the devastating scale and gravity of the starvation crime in this context has made it impossible to ignore. The Prosecutor has repeatedly offered Israeli officials the opportunity to reverse course on this practice. They have failed to seize that opportunity. Other crimes, such as those related to wanton destruction, detainee mistreatment, or the conduct of hostilities may be included in future requests.

  • Similarly, there are powerful reasons to start with a broad range of crimes arising from October 7 in the Hamas warrants: Hostage-taking was always a very likely charge, given  that it is straightforwardly attributable to those in senior leadership positions. However, the crimes of mass-killing and the abuse of captives, including torture, rape and other sexual violence, are also well supported by publicly available information and their gravity demands attention. Notably, although today’s application includes rape and other forms of sexual violence against hostages, the Prosecutor notes that his office “continues to investigate reports of sexual violence committed on 7 October.”

  • Objections relating to Palestinian statehood:  As two of a small group of States contesting Palestinian statehood, Israel and the United States have objected to Palestine’s capacity to accede to the ICC Statute. However, ICC Judges already concluded in 2021 that Palestine – including the territory of Gaza, the West Bank, and East Jerusalem – is an ICC State Party. We can expect this to be challenged in upcoming proceedings, but, with a large and growing majority of U.N. member States recognizing Palestinian statehood, that challenge is unlikely to succeed. If it were successful, this would preclude warrants against both Hamas leaders and Israeli officials.

  • Although arrests are unlikely in the short term, this is a major development: If the requested warrants against Israeli officials are approved, this would immediately shrink the world of Netanyahu and Gallant. From that moment, 124 States would have an obligation to arrest and transfer them to The Hague. This impact would be permanent and unyielding – there are no statutes of limitations or amnesties for these crimes. Warrants would also provide the focal point for political and legal mobilization in third states, including the United States, making it harder to sustain military aid to Israel.

  • The independence of the Court and the Prosecutor must be respected: Whatever their view of the merits of today’s announcement, all States ought to be united in resisting efforts to intimidate the Prosecutor, the judges, or those on their staff. If U.S. actors seek to undermine the ICC process, this will diminish the United States’ credibility in invoking international law in other contexts, such as Ukraine.

What will the Prosecutor need to show to convince the Pre-Trial Chamber to issue the requested warrants? 

The “reasonable grounds” standard: For the ICC to issue an arrest warrant (or, where cooperation is anticipated, a summons to appear), the Prosecutor must convince a Pre-Trial Chamber that there are reasonable grounds to believe that crimes within the Court’s jurisdiction have been committed (article 58). The reasonable grounds to believe threshold is lower than the “substantial grounds to believe” necessary to have charges confirmed and go to trial (for which the Prosecutor will require further Pre-Trial Chamber approval) and it is far lower than the “beyond reasonable doubt” threshold necessary to secure a conviction (articles 61, 66). It can be established with a concise statement of the facts alleged to constitute the crimes and a summary of the evidence and other information supporting the reasonable belief that the identified individual is criminally responsible for the identified crimes. That does not mean that it is a foregone conclusion. In the case of a militia leader in the Democratic Republic of the Congo (DRC), Sylvestre Mudacumura, a Pre-Trial Chamber initially rejected the prosecutor’s application for an arrest warrant (but issued a warrant on a subsequent application); and in the al-Bashir case, one of the alleged crimes was approved only on appeal


Level of disclosure: To enhance the likelihood of arrest or to ensure the safety of victims and witnesses and to safeguard the investigation, an arrest warrant may be requested and issued under seal. This may extend to keeping the very existence of the warrant under seal until the time of arrest, as has been done in some cases involving members of rebel groups (e.g. here). Or it may entail keeping the details of the warrant under seal, while announcing its existence (e.g. here). It can also entail keeping the full content of the warrant secret, while including details regarding the individual and crime(s) implicated (e.g. here and here). At the other end of the spectrum, the Court can publish the full arrest warrant decision (e.g. here).


Today’s announcement of applications for warrants against senior Israeli officials and Hamas leaders, particularly when read in conjunction with the Expert Panel Report, is extraordinarily detailed in its specification of persons, crimes, and legal reasoning.


There may be more requests and warrants: It would be a mistake to presume that these are the only warrants that will be requested in the Palestine situation. Further warrant applications could add additional persons, expand the list of alleged crimes, or both (for an example of expanding the list of alleged crimes against an already-identified person, see here). In particular, the Prosecutor’s statement notes that his investigations continue into reports of sexual violence committed on Oct. 7 (as distinct from in the context of captivity, as is alleged in today’s warrant applications) and in relation to the large-scale IDF bombing campaign in Gaza (as distinct from the siege deprivation that is alleged in today’s warrant applications).


On what basis does the ICC have jurisdiction over Israeli officials?


There are three alternative grounds for ICC jurisdiction over war crimes, crimes against humanity, or genocide:


  1. The crimes were perpetrated in whole or in part on the territory of a State Party (article 12(2)(a)) or a state that has otherwise accepted the jurisdiction of the Court (article 12(3)).

  2. The crimes were perpetrated by the nationals of a State Party (article 12(2)(b)) or a state that has otherwise accepted the jurisdiction of the Court (article 12(3)).

  3. The situation was referred to the Court by the United Nations Security Council (articles 12(2) and 13(b)).


The last of these is inconceivable in the current context, given the United States’ veto. However, each of the other two alternative grounds is directly applicable and important in the current context.

Palestine acceded to the ICC Statute on Jan. 2, 2015, causing the Statute to enter into force for Palestine on Apr. 1, 2015. At the same time, it issued an article 12(3) declaration, accepting ICC jurisdiction going back to June 13, 2014. 


As such from June 13, 2014, the ICC has jurisdiction over crimes in the ICC Statute:


  • perpetrated in whole or in part on Palestinian territory (including by Israeli nationals) (article 12(2)(a)), and

  • perpetrated by Palestinian nationals anywhere in the world (including in Israel) (article 12(2)(b)).


Based on current ICC case law, territorial jurisdiction can attach if any part of the crime (including its consequences) occurs on State Party territory, even if the perpetrator acts entirely from the territory of a non-party (ICC Myanmar Authorization 2019, paras. 56-61). That means, under existing ICC precedent, conduct by Israeli officials the consequences of which occur in Palestinian territory are within the Court’s jurisdiction. 


What about the fact that some countries deny Palestinian statehood?


Israel, the United States, and a handful of other States have objected to the validity of Palestine’s ICC accession, citing questions regarding Palestinian statehood (here, here, and here, paras. 27, 100-101). Recognizing the “complex legal and factual issues” at stake, on Jan. 22, 2020, the previous head Prosecutor Fatou Bensouda requested an opinion from the Court’s Pre-Trial Chamber regarding jurisdiction in the context of Palestine, so that she could determine whether, and on what terms, to open a full investigation. 


On Feb. 5, 2021, Pre-Trial Chamber I issued its decision on that question. Although avoiding a general finding on the question of statehood, it determined (paras. 89-131):


  • Palestine is an ICC State Party, having successfully and properly completed the accession process,

  • The Court’s territorial jurisdiction in the context of Palestine extends throughout the Palestinian territory occupied since 1967, which includes Gaza and the West Bank, including East Jerusalem.


To be clear, this determination could still be contested. The Pre-Trial Chamber stipulated (para. 131) that its “conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation … When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute … the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.” 


However, a challenge to the Court’s jurisdiction on that basis is unlikely to succeed. The argument that Palestine is not an ICC State Party is today even weaker than it was when it was rejected by the Pre-Trial Chamber in 2021. Most obviously, less than two weeks ago, 143 member states voted in favor of the United Nations General Assembly resolution on Admission of new Members to the United Nations, which, among other things determined: “the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to membership in the United Nations.” Article 4 of the Charter limits U.N. membership to states. The affirmative vote included five more States than had voted for the General Assembly’s 2012 resolution recognizing Palestine as a non-member observer State. Only eight States stood with Israel in voting against the most recent resolution. 


Moreover, Canada, which had voted against the 2012 resolution and which was the only ICC State Party to contest the validity of Palestine’s accession to the Statute at the time in 2015 (para. 100), abstained from the most recent General Assembly vote and has reversed its opposition to ICC jurisdiction. The United Kingdom also appears to have withdrawn its opposition to ICC jurisdiction over the Palestine situation. Others that objected to ICC jurisdiction in the lead-up to the ICC’s 2021 decision voted in favor of Palestinian statehood in the recent U.N. vote (although Uganda and Brazil had also approved Palestine’s status as non-member observer state in 2012). 


Neither occupation nor unlawful annexation affects the scope of the territorial jurisdiction that a State may grant the ICC. For example, pursuant to Ukraine’s consent, the ICC has jurisdiction over areas of Ukraine occupied and illegally annexed by Russia. Indeed, the Court’s arrest warrant for Vladimir Putin is predicated on action in occupied Ukraine (land that the current Russian government does not recognize as Ukrainian). 


The Pre-Trial Chamber in 2021 determined that the Court’s territorial jurisdiction includes the West Bank (including East Jerusalem) and Gaza (para. 118), and did so citing General Assembly and Security Council resolutions recognizing the territory occupied since the 1967 war to be occupied Palestinian territory. The arrest warrants issued today relate to activity occurring in whole or in part in Gaza. There is no credible basis for disputing that Gaza is Palestinian territory.


It should also be noted that any objection to ICC jurisdiction on the basis of a rejection of Palestinian statehood would apply equally to the viability of warrants against Hamas leaders as to the viability of warrants against Israeli officials. As explained above, both are predicated on Palestine’s status as an ICC State Party.


Isn’t the ICC a court of last resort? Why is it preempting Israeli investigations?


The ICC is a court of last resort. By design, it is supposed to complement and encourage national proceedings, stepping in only to fill a lack of credible investigations and prosecutions at the domestic level. However, although there are reports of Israeli criminal investigations relating to conduct in Gaza, there is no public indication of any investigations of Netanyahu or Gallant for starvation crimes. On the contrary, Israel has repeatedly denied any practice or policy of sustenance denial or willful impediment of humanitarian relief.  Such denials have also been an important component of its argument at the International Court of Justice. 


If, contrary to this inference, there are domestic investigations relating to Netanyahu or Gallant for starvation crimes, Israel or the relevant individual can issue a challenge to the admissibility of the case and have the question reviewed by the judges of the Pre-Trial Chamber (article 19(2)).


Such a challenge would be assessed pursuant to the principle of complementarity, which is built into the ICC statute as a safeguard that ensures the primacy of domestic jurisdiction (article 17). This mechanism provides that a case is not admissible if the person identified in the arrest warrant has been or is being investigated or tried domestically for substantially the same conduct under scrutiny at the ICC (ICC Appeal of Kenya 2011, paras. 33-46). In the absence of such action, or if the domestic scrutiny relates to substantially different conduct, the case is admissible at the ICC. 


Even if domestic investigations are underway, the ICC case may proceed if the domestic investigations are not consistent with a genuine effort to bring the person to justice (e.g. if they are sham proceedings designed to shield the individual from accountability) (article 17(2)). On that point, it is important to pay attention to the rigor and nature of Israel’s existing domestic investigations (an issue that is currently drawing some scrutiny).


Why are the first warrants requested for Israeli officials focused on starvation crimes?


As noted above, today’s warrant applications are unlikely to be the last associated with the Palestine situation. However, there are strong reasons why the Prosecutor is starting with starvation crimes: the clarity of the crime base, the degree to which it can be linked to those at the top, and the OTP’s case-selection criteria of gravity, elevating underrepresented crimes, and potential impact.


It is often complicated to prove crimes arising during fighting due to the difficulty of determining or evaluating: 


  • what those performing a particular attack knew and did not know when they launched it, 

  • whether what they hit was what they were trying to hit,

  • what military advantage they (reasonably) anticipated and what civilian loss they (reasonably) expected,

  • what level of expected civilian loss would have been excessive to the military advantage anticipated, as evaluated by a reasonable commander


For reasons discussed below, key factual components of starvation crimes are relatively clear in the current context, and the relevant actions have been underway (albeit in varying forms) from the beginning. The Prosecutor has repeatedly warned of his attention to the criminality of that conduct and of the imperative to reverse it. Although applying a different legal framework (that of the Genocide Convention), the International Court of Justice has similarly placed great weight on this issue.

Of course, the crime base involving detainee mistreatment, wanton destruction, or pillage may be even clearer-cut in the current context, due to insider witness testimony and IDF troops posting footage of such acts on social media (e.g. here and here). However, although the recordings of lower-level IDF troops engaged in wanton destruction or pillage in Gaza offer powerful evidence of their criminal culpability, the viability of holding senior leaders accountable for such acts is contingent on finding “linkage evidence” connecting them to the conduct on the ground and perhaps theories of command responsibility.


The connections are simply clearer in the case of starvation carried out as a matter of policy. Senior leaders were explicit from early on about the sustenance denial strategy and their roles in it. Among those listed today, Defense Minister Gallant announced on Oct. 9, 2023, “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.” Ten days later Prime Minister Netanyahu stated, “we will not allow humanitarian assistance, in the form of food and medicines, from our territory to the Gaza Strip.” Other ministers have, at various points, articulated a deliberate policy of sustenance denial or openly blocked the delivery of food. Moreover, the conflict-wide structure of decisions about humanitarian access (requiring coordination at the top level of government) and the continuing nature of the crime (diminishing the plausibility of any lack of awareness among senior commanders as the situation deteriorated) both facilitate proving high-level responsibility for this crime.


Beyond questions of case viability, the OTP has previously identified a number of factors that inform its decisions on case selection. Among those factors, three weigh heavily in favor of starvation charges here:

 

  • By their nature, scale, and impact, starvation crimes are of exceptional gravity. In the current context, mass deprivation affects almost the entire population of Gaza. It entails extraordinary and enduring suffering, a tearing at the social fabric that is best characterized as torturous, the immediate and long-term degradation of human health, and slow and painful death, with gendered effects, a disproportionate impact on children, and profound socio-economic consequences.

  • With the practice ongoing, and multiple warnings ignored, the Prosecutor has likely concluded that a warrant for the continuing starvation war crime (and other related crimes) is now necessary both to affirm the credibility of those prior warnings and to seek to influence those who are involved but not yet named to reverse course immediately and robustly. The escalating provisional measures process at the ICJ might be viewed in a similar light.

What is the criminal threshold for starvation of civilians as a method of warfare?


There are three components to the crime worth discussing here: the connection to an international armed conflict, the prohibited conduct, and intent (ICC Elements of Crimes, p.21). On the question of intent, it is also worth clarifying the relationship between the starvation prohibition and the protection of civilians.


Armed Conflict

As with all war crimes, starvation of civilians as a method of warfare applies only if there is an armed conflict, the perpetrator is aware of the facts that establish that armed conflict, and the action in question is shaped by or dependent upon the fact of the armed conflict (a nexus requirement). Moreover, in the context of Palestine, the starvation war crime applies only if the conflict qualifies as an international armed conflict, because Palestine has not ratified the 2019 amendment that extended the starvation war crime to non-international armed conflicts.


With the support of the Expert Panel (para. 13), the Prosecutor has assessed (correctly) that this is not an obstacle in the current context, as Israel is bound by the law of international armed conflict in its operations in Gaza for two independent reasons:


  • First, there is a strong case that Israel has been the occupying power in the territory throughout this conflict (e.g. Dinstein 2019, pp. 298-301; RULAC; long-standing United Nations position), and, even if that argument were to fail, an overwhelming case can be made that Israel has re-occupied areas of Gaza as it gained control of those areas (e.g. Ben-Naftali et al Expert Opinion 2024). See also the Expert Panel on this point (para. 27).

  • Second, regardless of the question of occupation, Israel is using force in Gaza without the consent of the Palestinian Authority, thereby creating an international armed conflict between Israel and Palestine according to an approach that has found support at the ICC in the past (​​Prosecutor v. Ntaganda Trial Judgment 2019, para. 728; see also ICRC 2016, paras. 257-263). The Expert Panel offers this theory as predicated either on Palestinian statehood or on Palestine’s and Israel’s status as High Contracting parties to the 1949 Geneva Conventions (para. 13(a-b)).

Notably, despite holding that Israel ceased to be the occupying power following its unilateral withdrawal from Gaza in 2005, the Israeli courts have referred to the law of international armed conflict in analyzing the situation in Gaza since that time, including with reference to the starvation prohibition (Jaber Al-Bassiouni Ahmed 2008, paras. 13-15). The Israeli Ministry of Foreign Affairs has stated that it applies the law of both international and non-international armed conflict at least as a matter of policy.


Conduct

In an armed conflict, the starvation war crime includes two elements (ICC Elements of Crimes, p.21): 

  • The perpetrator must have engaged in the deprivation of objects indispensable to civilian survival.

  • The perpetrator must have done so intending to starve civilians as a method of warfare.

There is no element that requires proving a consequence of these actions. That is, the Prosecutor does not need to prove that civilians starved as a result of the prohibited deprivation.

The deprivation of objects indispensable to civilian survival can take many forms, and has taken many forms in Gaza. It includes:

Notably, in its assessment of the starvation war crime, the Expert Panel also emphasized the positive obligations of an occupying power, perhaps suggesting that the failure to discharge those obligations could, in certain circumstances, qualify as a criminal form of deprivation (para. 27). Among those obligations, the occupying power has a primary duty to “ensur[e] the food and medical supplies of the population,” to the “fullest extent of the means available to it,” including by “bring[ing] in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” (Geneva Convention IV, article 55).

The precise forms of deprivation have varied over time and have been most severe in their application to, and effects on, the population of northern Gaza. The key question at the ICC is whether these acts of deprivation have combined with criminal intent.


Intent

Today’s announcement indicates the Prosecutor has collected evidence “including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group,” which 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.


Importantly, the Prosecutor “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.”

In my view, this gets the question of intent broadly correct.


To be sure, given the lack of case law on the starvation crime, the meaning of intent in this context will be litigated as the case goes forward. I have outlined the range of arguments on that point at length in a law review article and in a Just Security essay. However, based on a composite analysis of (a) the underlying international humanitarian law on starvation of civilians as a method of warfare, as articulated in article 54 of Additional Protocol I to the Geneva Conventions, and (b) “intent,” as defined in article 30 of the ICC Statute, my view, which I have elaborated in the pieces linked above, is that acting with the intent to starve civilians as a method of warfare includes either of the two following alternatives:

  • Engaging in the deliberate deprivation of objects indispensable to survival for the purpose of denying the sustenance value of those objects to civilians or to a civilian population. This form of intent can attach before it is certain that civilians will be reduced to a state of starvation.

or:

  • Engaging in the deliberate deprivation of objects indispensable to survival in the knowledge that this deprivation is virtually certain to leave civilians in a state of starvation. This form of intent can attach even if civilian sustenance denial is not the purpose.

In my view, Defense Minister Gallant’s initial announcement of the total siege clearly implicated the first of these, as the specific identification of food and water as items to be cut off could not be understood as anything other than a policy of purposive sustenance denial. 

He was not alone in adopting this posture. By way of example, the day after Defense Minister Gallant’s statement, another military official within the chain of command, Coordinator of the Government in the Territories Maj. Gen. Ghassan Alian made a video recorded announcement: “Hamas became ISIS, and the citizens of Gaza are celebrating instead of being horrified. Human beasts are dealt with accordingly. Israel has imposed a total blockade on Gaza – no electricity, no water, just damage. You wanted hell – you will get hell.”

Subsequently, as the consensus of independent authorities has identified famine as setting in in northern Gaza and catastrophic food insecurity proliferating elsewhere in Gaza, it has become increasingly clear that acts of deprivation today (such as destroying agricultural land or impeding humanitarian relief) are virtually certain to contribute to civilian starvation. The situation is dire. This has been a predictable and predicted trajectory.

Civilians

Two points bear emphasis when considering what it means to intentionally starve civilians as a method of warfare:

  • A predominantly civilian population retains its civilian status notwithstanding the presence of combatants (Protocol I, article 50(3); ICTY Prosecutor v. Karadžić Trial Judgment 2016, paras. 474, 4610 n.5510; ICC Prosecutor v. Ongwen, Trial Judgment 2021, para. 2759). Gaza is overwhelmingly civilian (as is the population of northern Gaza), so any operation directed at the population of Gaza (or at the population of northern Gaza) as a whole is an operation directed at civilians. This would hold true even if the ultimate goal of purposefully denying sustenance to a civilian population were to “eliminate Hamas” combatants, to squeeze them into capitulation, or to pursue any other objective. War crimes are not excused by the fact that they are perpetrated in the pursuit of a lawful goal. 

  • Relatedly, ICC case law establishes that an attack directed indiscriminately at “civilians and fighters alike” can qualify legally as an attack on civilians (Prosecutor v. Ntaganda, Trial Judgment (2019) paras. 921-923; Appeal Judgment (2021) paras. 418, 424, 491; Prosecutor v. Katanga, Trial Judgment (2014) paras. 801-802).  On a similar basis, sustenance denial deployed indiscriminately against civilians and combatants ought to be understood as sustenance denial deployed against both civilians and combatants. The “basic rule” of contemporary international humanitarian law is that parties to a conflict must “at all times distinguish between the civilian population and combatants” and “direct their operations only against military objectives” (article 48, Additional Protocol I).

  • These very points are also important to evaluating crimes against humanity in the context of the application for Hamas leaders’ arrest warrants.

What are the key components of the additional allegations against Netanyahu and Gallant?

Each of the additional allegations against Netanyahu and Gallant is associated with the practice of deprivation. In that sense, the facts discussed above are the core of today’s applications for the arrest of Netanyahu and Gallant. I have examined the way in which starvation charges can be brought under the crimes against humanity categories alleged by the Prosecutor (extermination, murder, other inhumane acts, and persecution) here. Rather than offering a full analysis of each of the criminal categories here, five points are worth emphasizing:

  • First, to qualify as crimes against humanity, acts of deprivation must be “committed as part of a widespread or systematic attack directed against any civilian population,” with the concept of “attack” entailing action “pursuant to or in furtherance of a State or organizational policy to commit such attack” (articles 7(1), 7(2)(a)). Whether an attack is widespread is a quantitative evaluation; systematicity refers instead to whether the attack is patterned, planned, or organized. The system of deprivation inflicted on the people of Gaza is both.

  • Second, unlike the starvation war crime, the crimes against humanity of murder and extermination require establishing that the wrongful conduct caused deaths and that the perpetrator meant to cause those deaths or was aware they would occur in the ordinary course of events. (ICC Elements of Crimes, p.4; Statute art. 30(2)(b)) The distinction between murder and extermination is one of scale. Whether the focus is ultimately on extermination will depend on whether it can be shown that the lethality of the starvation inflicted on Gaza amounts to “mass killing.” (ICC Elements of Crimes, p.4) On the point of massiveness, the Expert Panel reports, “According to material submitted by the Prosecutor, a large number of Palestinian civilians have already died” as a result of starvation and that this number is “sufficient on its own to support the charge” of extermination (para. 31). 

  • Third, the crime against humanity of “other inhumane acts” is a residual category defined by acts that are of a “similar character,” which is to say of similar “nature and gravity,” to other crimes against humanity and which involve “intentionally causing great suffering, or serious injury to body or to mental or physical health.” (ICC Elements of Crimes, p.12) For reasons I have elaborated elsewhere, precisely the acts involved in starvation of civilians as a method of warfare could qualify for this threshold, with the nature of those acts presumptively causing great suffering or serious injury to body or to mental or physical health (pp.147-49). The distinction between the war crime and crime against humanity would simply be that the former requires a nexus to armed conflict, whereas the latter must be part of a widespread or systematic attack on a civilian population. As noted above, the latter criterion is satisfied in this case.

  • Fourth, the main way in which persecution (as a severe deprivation of fundamental rights) adds a layer to the other crimes is that it must be perpetrated with discriminatory intent – i.e. “by reason of the identity of a group or collectivity or targeted the group or collectivity as such.” (ICC Elements of Crimes, p.7). The Expert Panel takes the position that the severe deprivation of Gazans’ fundamental rights has been inflicted “by reason of their identity as Palestinians” (para. 31).

  • Finally, given their common factual predicate the primary points of significance in relation to the additional war crimes charges (murder/killing, wilfully causing great suffering or serious injury to body or health/cruel treatment, intentionally directing attacks against a civilian population) are: (i) that they are also available in non-international armed conflicts, should the Prosecutor’s theory of international armed conflict fail, (ii) they capture some of the specific harms inflicted through starvation methods, and (iii) unlike the starvation war crime, they each have international criminal precedents upon which the ICC can draw. Most involve consequence elements, although, as with the starvation crime, the ICC’s definition of the war crime of directing attacks against the civilian population does not require a specific harmful impact on targeted population or individuals; the fact of launching the attack against a civilian population or individual civilians is sufficient (Prosecutor v. Ongwen, Trial Judgment (2021), para. 2758).

What about the allegations against Sinwar, Deif, and Haniyeh?

It is entirely appropriate and unsurprising that today’s announcement also includes a request for arrest warrants against Hamas leaders. As noted above, ICC jurisdiction covers Statute crimes perpetrated by Palestinian nationals, even when the crimes occurred on Israeli territory. There is little doubt that Hamas militants and leaders have committed crimes within the ICC’s jurisdiction on and since October 7th. The Prosecutor has been clear from early on he was committed to investigating those crimes. 

Hostage-Taking

The most widely predicted among the allegations against Hamas leaders was the war crime of hostage-taking (ICC Elements of Crimes, pp.12, 23). It involves the following elements:


  • The perpetrator seized, detained or otherwise held hostage one or more persons.

  • The perpetrator threatened to kill, injure or continue to detain such person or persons.

  • The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons.

  • Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

  • The perpetrator was aware of the factual circumstances that established this status.

It is clear that most, if not all, of the at least 245 hostages seized and detained on October 7th were civilians, including children and the elderly. Given that the attack as a whole was directed against a civilian population, the factual circumstances establishing their civilian status were surely clear to all involved in the assault. 

On the issue of the intention to compel another to act or refrain from acting, the criminality of this practice does not turn on whether the target of the coercion has an independent legal obligation to perform the demanded act. It applies as clearly to the taking of hostages to demand compliance with the law as it does to the taking of hostages to demand any other act or omission. This is because the wrong inheres not in the nature of the demand, but in the unlawful instrumentalization of the hostages’ liberty or safety. It is clear that the threat and reality of the hostages’ continued detention has been used by Hamas leaders and negotiators as a point of leverage to compel Israel to act or refrain from acting in various ways (including, most obviously, agreeing to a ceasefire, allowing humanitarian aid in, and releasing Palestinian detainees).  

Other Crimes

In addition to hostage-taking, the other Hamas crimes alleged today are extremely likely to pass the arrest warrant threshold of “reasonable grounds to believe.” These include: extermination, murder, torture, outrages upon personal dignity, inhumane acts, and crimes of sexual violence including rape.

As noted above, today’s application includes rape and other forms of sexual violence committed against hostages, while the Prosecutor notes in his contemporaneous public statement that his office “continues to investigate reports of sexual violence committed on 7 October.” As exemplified by the sequence of warrants in the Ukraine situation, crimes for which it is more difficult to gather evidence and to prove intent of senior level officials may take longer to investigate, with warrants requested and issued later as a result. Today’s warrant requests are unlikely to be the last.

As with the analysis of crimes against humanity in the context of Israel’s siege of Gaza, it is clear that the attacks of October 7 were both widespread and systematic and that they were executed pursuant to an organizational policy, as exemplified by senior Hamas member Ghazi Hamad’s threat to repeat the attack. With approximately 1,200 persons killed, the crimes against humanity of murder and extermination are likely to be clearly surpassed. As above, it is critical to bear in mind both (i) that a population composed predominantly of civilians does not lose its civilian character in virtue of the presence of combatants, and (ii) that an attack perpetrated without distinction against both civilians and combatants can qualify as an attack directed against civilians. The populations against which the assault of October 7th was perpetrated were civilian populations. That assessment is not changed by the presence of combatants within those populations.


Similarly, U.N. Special Representative on Sexual Violence in Conflict Pramilla Patten had already reported (e.g. para. 17) “clear and convinceing evidence” of the gross mistreatment of hostages, including on a level that would amount to torture (the “infliction severe physical or mental pain or suffering” ICC Elements of Crimes, p.5), outrages upon human dignity, inhumane acts, and rape and other forms of sexual violence. 


What is the doctrine of command/superior responsibility (referenced in both sets of allegations)?

The announcement indicates that both sets of applications include (but are not dependent on) the doctrine of command responsibility. Although not without its own difficulties at the ICC, this doctrine can overcome some of the challenges associated with linking leaders to conduct on the ground. Applied to military commanders, or those effectively acting as military commanders, its key elements (article 28) are:


  1. the person was in a position of effective command and control over the principal perpetrators of the crime(s);

  2. the person knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit the crime(s); and

  3. the person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

As these elements emphasize, it is a crime of omission (the failure to take necessary and reasonable measures) and liability can attach on the basis of constructive knowledge (i.e. when the commander “should have known” about the criminality of their subordinates’ conduct). The justification for this is the fact of the commander’s effective control and the heightened responsibility that comes with it. Civilian leaders may also be held liable under this doctrine, but the second element concerning their state of knowledge includes a higher threshold for prosecutors to meet (the person “either knew, or consciously disregarded information which clearly indicated” that subordinates were committing or about to commit the crimes). Additionally, in the context of civilian superiors, it must be shown that the crimes concerned activities that were themselves “within the effective responsibility and control of the superior.”


Here, it seems likely that each of the persons listed in today’s allegations will satisfy the effective control criterion. As such, their liability under command responsibility will turn on how much information they each had about the relevant crimes and whether any of them took measures to prevent, repress, or punish them. The level of knowledge and contribution alleged goes far beyond what is necessary to surpass those thresholds.


If issued, would the warrants matter? And what would they mean for the United States?

The ICC does not have its own police force, so the enforcement of any warrants that are issued will not be automatic. Israel is not party to the Statute and has made it abundantly clear it will not cooperate with the Court, at least not under anything like current political conditions. In that sense, it is unlikely that any of the identified individuals will be sitting in the dock in The Hague in the short or medium term. 


However, as evinced by Netanyahu’s significant expenditure of effort and political capital to try to stop their request or issuance, the warrants’ approval would matter in multiple other respects. Warrants would change how the identified individuals can engage with the world, provide a focal point for various forms of political and legal mobilization (including in the United States and including against supplying military aid to Israel), and impact the standing of the ICC for different audiences. 


A Shrinking World

First, if issued, warrants will change the terms on which Netanyahu and Gallant can engage with the world. If the warrants are approved by ICC judges, the 124 States that are party to the ICC Statute will have a legal obligation to arrest them if they come within the jurisdiction of those States (articles 89, 92). Civil society actors and others within some of those 124 States are likely to pursue various avenues to ensure that the warrants are domesticated, immediately actionable upon those individuals’ entry into the relevant State’s territory, and insulated from political interference. The Democratic Alliance succeeded in doing precisely this in the Pretoria High Court in order to incorporate the ICC’s arrest warrant for Vladimir Putin into South African law—an action that precipitated Putin’s non-attendance at the BRICS Summit in August 2023, despite the fact that Putin had wanted to attend and South Africa had been reluctant to disinvite him.


While he remains in office, Netanyahu’s status as head of government might be thought to complicate this analysis. However, the ICC Appeals Chamber has ruled (in proceedings relating to the warrant for former Sudanese President Omar al-Bashir) that the ICC’s status as an “international court” means that sitting heads of state or government of even States that are not party to the ICC Statute do not enjoy immunity before the Court or against states executing warrants on its behalf (Jordan Referral, Appeal Judgment 2019, paras. 100-117). Of course, al-Bashir’s warrant arose from a situation referred by the UN Security Council, which provided the Court an independent and alternative basis for finding his immunity to be inapplicable (Jordan Referral, Appeal Judgment 2019, paras. 118-120, 133-149). There may be an effort to emphasize the latter theory over the former in cases not operating on the basis of a Security Council referral. However, in relying in the first instance on its status as an international court, the Appeals Chamber in the al-Bashir litigation set a precedent that would appear to be as applicable to Putin or Netanyahu as it was to al-Bashir (Jordan Referral, Appeal Judgment 2019, paras. 117-120). 


In short, if the Prosecutor’s request is successful, the world of Netanyahu and Gallant will shrink considerably. To travel to an ICC State Party would be, for them, to risk arrest and transfer to The Hague. This includes numerous States friendly to Israel, such as Germany, Austria, Canada, and the United Kingdom. Even for States that are not party to the ICC Statute, the domestic and international political cost of embracing and honoring these individuals has escalated meaningfully. 


The impact will not be temporary. War crimes have no statute of limitations. Perpetrators, including former Heads of State, are sometimes tried multiple decades after their wrongful acts (e.g. here). Moreover, although the ICC has yet to rule definitively on the issue (Prosecutor v. Gaddafi, Admissibility Appeal Decision, para. 96), they are crimes for which there is generally thought to be no valid amnesty. In other words, the warrants are poised to hang over Netanyahu and Gallant until they are addressed. At most, the U.N. Security Council can defer a case for a year at a time, but each such deferral requires nine affirmative votes and no veto (article 16). That is not a realistic proposition as things stand, although it is not inconceivable that such a path could be included as part of the final and comprehensive negotiation of a two-state solution.


In addition to the direct impact on those listed in the warrant requests announced today, this legal development also sends a signal to other officials implicated in meaningful ways in the relevant government practices. Unless the situation changes, their worlds are also at risk of being permanently narrowed. Indeed, they cannot rule out the possibility of an existing or forthcoming sealed arrest warrant in anticipation of when they travel. 


All of the same State Party obligations would attach if the Hamas warrants are approved. However, Hamas leaders already operate in a small world in terms of States to which they can safely travel, so the warrants would change less for them. At the same time, it is easier to imagine that they might be arrested and transferred in the short to medium term.


Focal Points for Political and Legal Mobilization

Beyond the immediate impact on the identified individuals, Pre-Trial Chamber approval of the Prosecutor’s request would provide a potent focal point for political mobilization in various fora and in divergent directions.


Most obviously, the existence of warrants for the arrest of Netanyahu and Gallant would strengthen those mobilizing and litigating against military aid to Israel, while making it materially harder to defend the continuation of such support in the political arena and some courts of law. Although the ICC Prosecutor is unlikely to focus on those supplying arms, clarifying the criminal significance of what is being supported, which today’s action does, may also heighten the legal exposure of those in positions to authorize or decline military aid. 


In some quarters, today’s requests will be invoked as evidence of bias and used to stoke pre-existing hostility toward the ICC and other international bodies. Pressure on the Prosecutor, his staff, and the Pre-Trial Chamber’s judges may escalate. The Prosecutor responded admirably on that front before the Security Council last week on matters involving Ukraine, but he should not need to stand alone. States Parties and other States must express their solidarity and support in the face of efforts to intimidate, coerce, or punish ICC officials. 


The Prosecutor made this point clear in his statement

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.

One can choose not to agree with the Prosecutor’s decision, but attacks on the independence of his office and on the judicial body are unacceptable. 


The United States 

Although the United States is not one of the 124 States with ICC Statute obligation to arrest and transfer Netanyahu and Gallant to the ICC, the warrants matter here, too.


Russian President Vladimir Putin is accused of perpetrating war crimes on the territory of another State (Ukraine), the existence and territorial boundaries of which he disputes. He is the head of State of a country that is not party to the ICC. The validity of the ICC’s warrant against him – a warrant welcomed by the United States – is rooted in the validity of Ukraine’s sovereign consent and the ICC’s status as an international court. Although the precise legal arguments regarding ICC jurisdiction may be different, the parallels with the Prosecutor’s request for  warrants for Netanyahu and Gallant are clear, the core concerns for accountability should be no less, and confidence in the ICC as a court capable of reviewing the legal arguments fairly and impartially ought to be precisely the same. And yet the response from Washington is sure to be very different. Although unsurprising, this double standard on the part of the United States government is not politically costless. With each instance, the viability of mobilizing support around an invocation of the “rules-based order” – a key rallying cry in the effort to support Ukraine and other U.S. interests – diminishes.


As with other third States, the United States is one in which the warrants have the potential to strengthen those mobilizing politically against military aid to Israel and to weaken the political position of those seeking to maintain that contribution. These effects may impact the dynamics among lawyers in the State Department and elsewhere in the executive branch as much as they reverberate through public pressure and congressional deliberations.


At the same time, some in the United States are likely to escalate the rhetorical and other actions that already began with the first rumors that warrants might be forthcoming. As the OTP noted recently, such efforts may implicate article 70(1)(d) of the Statute, which includes among the ICC’s “offenses against the administration of justice” the crime of “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.” 


The Court’s jurisdiction over crimes involving interference with the administration of justice are broadly applicable. Specifically, the ICC’s Rules of Procedure and Evidence appear not to apply the same requirement for territorial or nationality-based jurisdiction to offenses under article 70 as are applied to war crimes, crimes against humanity, and genocide (ICC Rules of Procedure and Evidence, rule 163(2)). However, even if that point were challenged, intimidation and impediments inflicted on Court officials acting on the territory of the Netherlands (the seat of the Court) could implicate territorial jurisdiction on the grounds that the Netherlands is an ICC State Party (ICC Myanmar Authorization 2019, paras. 56-61), at least insofar as the individuals in question are not shielded by an applicable immunity. There are many political reasons that the Prosecutor may be reluctant to pursue such action, but that analysis may turn on how egregious the efforts become. See also Uzay Yasar Aysev’s analysis and Sergey Vasiliev’s analysis of this issue as applied to sanctions and other efforts to intimidate ICC officials during the Trump administration.


A final note on U.S. legal obligations: given the inclusion of grave breaches of the Geneva Conventions or serious violations of Common Article 3 (wilfully causing great suffering, or serious injury to body or health, wilful killing, cruel treatment, and murder), the allegations include crimes that could be prosecuted in the United States under domestic war crimes legislation. For acts falling within the former category, as a party to the Geneva Conventions, the United States has an obligation either to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts” or to extradite persons suspected of such crimes to a High Contracting Party that has made a prima facie case (Geneva Convention IV, article 146).


ICC Legitimacy

The arrest warrant requests matter also for the legitimacy of the International Criminal Court and its Prosecutor. Prior to Russia’s full-scale invasion of Ukraine in February of 2022, the Court had suffered a decade of deepening crisis, with multiple points of deep disagreement between the Court and the African Union, overt non-cooperation, State Party withdrawals, and a budget crunch. Two decades into the Court’s existence, these are the first ICC warrants issued against the officials of a country strongly allied with and supported by powerful Western states. These warrants alone will not dispel all criticisms of bias and inequity in the functioning of the ICC and its agents. Nor will they be sufficient to fully revive the Court’s legitimacy within the constituencies where it has suffered most. However, the warrants may enhance the Court’s standing in many quarters of the world, including among those who call for impartiality and the equal application of justice. For the Prosecutor to have failed to act in the face of the devastating man-made catastrophe that has been inflicted upon the people of Gaza would very likely have sealed the ICC’s fate. Equally, given the gravity of the atrocities of October 7th, it would have been untenable for the Prosecutor not to have sought the arrest of those responsible for the crimes that were perpetrated during that attack and that have continued since.

 

Editor’s note: Readers may also be interested in Rebecca Hamilton, Tess Bridgeman, and Ryan Goodman, Timeline of Int’l Crim Court Arrest Warrants for Gaza War: What Comes Next and How We Got Here, Just Security, May 20, 2024


 

© 2024, Just Security, Reiss Center on Law and Security, New York University School of Law

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