*This piece was originally published in Dutch on Nederland Rechtstaat on 23 May 2024
On 20 May 2024, the prosecutor of the International Criminal Court (ICC), Karim Khan, announced in a press release that he has applied for the issuance of arrest warrants against three Hamas leaders and Israeli Prime Minister, Netanyahu, and Defence Minister, Gallant.[1] The prosecutor believes that there is sufficient evidence that these suspects are guilty of multiple war crimes and crimes against humanity from 7 October 2023 onwards, the start of the conflict in Gaza.
This announcement of a submitted application for arrest warrants marks a significant milestone in international criminal law and is highly pertinent to the increasingly polarized debate on the Gaza conflict. In this analysis, I explore various aspects of the potential arrest warrants for the five suspects, against the backdrop of the broader question of whether this represents a triumph of justice.
1. Basis and content of the application
I will limit myself to a few observations only on the basis and content of the application. For a more comprehensive analysis of the role and significance of international criminal law in the conflict in Gaza, I refer to my forthcoming publication in Ars Aequi (see G.K. Sluiter, ‘The conflict in Gaza – the role and significance of international criminal law’, AA 2024, vol. 6, pp. 518-522 (AA20240518) – which I, however, completed before the prosecutor submitted the request for arrest warrants.
First, it is important to recall that the basis for the decision to request arrest warrants lies in a 2021 ICC ruling in which the Court stated that it had jurisdiction over international crimes committed or to be committed from 2014 on Palestinian territory, namely the Gaza Strip, the West Bank and East Jerusalem.
Subsequently, in 2021, the ICC prosecutor, Khan, launched a formal criminal investigation into crimes allegedly committed earlier, notably in 2014. That criminal investigation intensified significantly after 7 October 2023, not only on the initiative of the prosecutor himself but also because in November 2023, several states submitted a referral regarding the commission of international crimes in Gaza. The expeditious pursuit of criminal investigations into crimes in Gaza is demonstrated by the prosecution's decision to request arrest warrants within just eight months of the conflict's outbreak, which is unusually fast for the ICC.
Under Article 58 of the ICC Statute, an arrest warrant, as the start of the prosecution, can only be issued if there are reasonable grounds to believe that the suspect has committed a crime within the jurisdiction of the Court and if there are grounds for arrest, such as risk of flight. In the 20 May 2024 press release, the prosecutor does not pay attention to existence of such grounds - which seem to be fulfilled, certainly risk of flight in light of Israel’s position towards the ICC - but does explain why he believes there is sufficient evidence and what criminal suspicions this evidence results in.
The press release contains two parts, first an overview of the accusations against the Hamas leaders and, second, a justification of the prosecution application regarding Netanyahu and Gallant. I focus primarily on the second section, as it attracts the most attention, and because the evidence and criminality of Hamas' actions on October 7, 2023 (and onwards, especially the continuing taking of hostages), were never in doubt or seriously debated.
Several things in the section on Netanyahu and Gallant merit further attention.
First, the prosecution states that it has ample evidence regarding crimes committed in Gaza, which -according to the prosecutor- demonstrate that Israel deliberately and systematically deprived the population in Gaza of access to resources essential for their survival. The focus appears, for now, to be more on starvation as a war crime and cutting off drinking water, electricity and aid, than on bombing the civilian population. But the prosecutor indicates that the ongoing investigation will certainly focus on the large-scale bombing of civilians; to the extent that this is not already part of the request for arrest warrants, it is obvious that the formal indictment may be expanded to include this at a later stage.
The emphasis on starvation as a war crime, along with related crimes such as cutting off essential life necessities, is quite defensible. This is an area of humanitarian law on which there is not yet much case law, but which can cause terrible suffering in conflict. Fortunately, there is increasing attention to this area from legal scholarship. For instance, I can recommend Jolanda Andela's thesis, recently successfully defended at EUR.
Strategically, it makes also sense to focus on the deprivation of basic necessities, as this cannot really be justified and pre-empts discussions on Israel's need for self-defence or whether combat operations, such as bombing, were proportionate or not. Various experts in recent months have measured the suffering of the population in Gaza too much against the need for self-defence and the issues of targeting and proportionality, sometimes suggesting that a judgement on the legality of combat operations lies primarily with the Israeli armed forces themselves and that it is inappropriate for this to be assessed externally. Leaving aside the fact that this is incorrect (see my analysis in Ars Aequi), it is to be welcomed that the prosecutor shows that there were other particularly serious crimes beyond the many bombings for which, as far as I am concerned, there is no justification.
Second, it is notable that the prosecution's allegations against Netanyahu and Gallant lead to multiple qualifications of both war crimes and crimes against humanity, namely:
- 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)
This is a hefty list of extremely serious charges that any accused should be concerned about; moreover, investigations are ongoing and it is possible that other charges will be added.
The qualification of several war crimes is not surprising, as we are in the midst of an ongoing armed conflict. Simultaneously, we see the qualification of various crimes against humanity, such as extermination, persecution and other inhumane acts.
The crimes against humanity-qualifications imply that the prosecution assumes the following. Firstly, there is - as a contextual element of crimes against humanity - a widespread or systematic attack on the Palestinian civilian population; various human rights violations directed against Palestinians over an extended period could prove this. With the qualification of persecution, the ICC prosecutor indicates he believes that the human rights of Palestinians are seriously violated precisely because of their group identity. Given the definition of extermination and the content of the press release, the prosecutor is further convinced that Israel is imposing living conditions on Palestinians through, among other things, the policy of starvation calculated to bring about the destruction of part of that population.
This last accusation in particular, extermination, especially the element ‘calculated to bring about the destruction of part of a population’, raises the question of why, according to the prosecutor, genocide of the Palestinians has not - yet - occurred. It is a question that occupies many, like the protesters at universities worldwide who claim there is a genocide being committed in Gaza.
We can conclude at this point that the ICC prosecutor does not yet believe genocide is being committed, otherwise he would have included it in the request for arrest warrants. Seemingly, the prosecutor believes that the specific intent to destroy – in whole or in part- the Palestinian population as such is currently lacking. Moreover, for extermination, the destruction of part of the population may be relatively small, whereas in case of genocide, even partial destruction must involve a significant number of victims. In this context, it is telling that Hamas leaders are also accused of extermination as a crime against humanity, while the part of the population that would be targeted for extermination, in that case, seems to be considerably smaller - both in absolute terms and in relation to the Israeli population as a whole - than the number of victims of extermination committed in Gaza.
This being said, the charge of extermination as a crime against humanity - with the element that the punishable act is calculated to bring about the destruction of part of a population - does come close to genocide.
A final point I would like to make here is that the press release does not mention the reasons for choosing these five suspects. For those who follow the ICC and have knowledge of its prosecution policy, this is not necessary and this choice comes as little surprise. The ICC focuses primarily on those who bear the greatest criminal responsibility, i.e., political and military leaders. They are at the forefront of the policies pursued and they are in all respects most to blame. In criminal terms, this translates into the accusation of co-perpetration (as part, in this case, of a common plan of multiple crimes directed against the Palestinian population) and the accusation of command responsibility, the criminal liability for crimes committed by subordinates if nothing is done to prevent or punish these crimes.
2. Further proceedings
Following the filing of the application for arrest warrants on 20 May, it is now up to the Pre-Trial Chamber of the ICC, under Article 58 of the ICC Statute, to grant or reject this application. The Pre-Trial Chamber is obliged to issue the arrest warrants if there is sufficient evidence and grounds are present. Given previous cases at the ICC and the lower standard of proof applicable at this stage, I have no doubt that the arrest warrants will be granted.
After the issuance of those warrants, any ICC party-state, including the entire EU, would be obliged to arrest and hand over Netanyahu and Gallant if they enter its territory. Whether that will happen, however, remains to be seen. Not only will both ministers likely avoid visits to ICC state parties from now on, but it is also possible that certain party states may prioritise good relations with Israel over their obligations to the ICC.
As long as the suspects are not arrested and transferred to The Hague, the criminal proceedings against them cannot begin. However, it is possible to hold proceedings concerning the confirmation of charges in the absence of the accused (see Article 61(2) of the ICC Statute). Such proceedings can serve a certain purpose even in the absence of a perspective on a criminal trial, such as the presentation of evidence and as a first step towards justice for victims. It is my expectation that both in the case against Putin and in this case, the ICC prosecutor will make efforts to conduct the confirmation hearing in the absence of the accused after some time is allowed for suspects to be detained and handed over to the ICC.
However, the fact remains that there is a significant chance that a possible criminal trial against Netanyahu will not take place for a long time - and perhaps never given his age. We also see this happening with former Sudanese head of state Al Bashir; his 2009 arrest warrant has not been executed to date. This remains extremely unsatisfactory.
3. Why the request for arrest warrants is a positive development
Despite certain outraged reactions – more on this in section 5 - the ICC is doing what it was set up to do. In this not simple 'test case' - in which both inaction and prosecution lead to extremely critical reactions - the only right thing to do for the authority of the ICC and for the legitimacy and credibility of the entire system of international criminal justice is to be guided by evidence and the law.
I am delighted to see that the prosecutor in this case puts evidence and the law first. Unfortunately, this has in my view not always been the case in the history of the ICC, as the ending of the investigation into war crimes committed by Americans in the Afghanistan situation shows (see my contribution in Ars Aequi).
Even if it does not soon - or perhaps never - come to a prosecution of the five suspects, we should not underestimate the effect of norm expression. The prosecutor, from his perspective, makes two points clear. First, there is ample evidence that serious crimes were committed. Second, the Prosecutor reminds us of the content and scope of the crimes in the ICC Statute and that they always apply, even if it involves exercising the right to self-defence. As Khan rightly states:
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.
Lastly, this step is a good development as it compels us, particularly states, to confront our stance on addressing serious criminal acts. Are we inclined to downplay them, dismiss them altogether, or do we choose to openly acknowledge them and assume responsibility? I elaborate on this in the next section.
4. Initial reactions and position of the Netherlands
It was predictable that Khan's announcement on May 20 would capture global attention and provoke occasionally very critical responses. I would like to offer the following observations at this point.
That non-party states to the ICC, such as Israel and the US, are highly critical of Khan and the ICC was not only to be expected, but it is their good right, being states which are not a party to the Court. Remarkably, the biggest criticism apparently concerns Khan's alleged equating of Hamas and Netanyahu/Gallant and not (the US) or hardly (Israel) disputing the evidence or legal qualification.
I don't see how Khan would equate Hamas and Netanyahu/Gallant in any way. What the prosecution has done, as in any criminal investigation within an armed conflict, is to be guided by the evidence. Sometimes the evidence points in the direction of mainly one of the warring parties and not the other, as in the conflict between Russia and Ukraine, in which so far only Russians have been charged. In this case, the prosecutor concluded, on good grounds as far as I am concerned, that the available evidence points to serious crimes committed by both Hamas and Israel. At no point does the prosecutor suggest or imply, nor is it his role, that one party to the armed conflict committed more or more serious crimes than the other. Criminal law, and delivering justice to victims, are not a race in suffering; all serious criminal offences deserve criminal prosecution whether committed by a terrorist organisation or by the democratically elected representatives of the Israeli people.
There are at least two ICC state parties, the UK and Germany, that have been critical of the request for arrest warrants. This again centered on the issue of equating Hamas and Netanyahu. Sunak, Prime Minister of the UK, further added that arrest warrants are not helpful in achieving peace in this protracted and complex conflict (see here). What evidence he has for this assertion is completely unclear. Scholarship has long grappled with the question of how the pursuit of justice through the prosecution of war criminals may affect the attainment of peace. To date, there is no compelling evidence indicating that such prosecutions hinder peace-building efforts. In fact, many scholars argue that sustainable peace can only be achieved through delivering justice; see also the preamble to the ICC Statute:
Recognising that such grave crimes threaten the peace, security and well-being of the world.
From the Netherlands, I have not yet seen a formal and clear reaction, neither from the incumbent government nor from the likely future governing parties. However, a PVV MP did call the Palestinians a fake people and PVV leader Wilders said in Dutch parliament on 23 May 2024 that he will always stand behind Israel, no matter what; the reaction from that Dutch political party to Khan’s application for arrest warrants is therefore easy to guess.
VVD MP Brekelmans in the radio broadcast ‚Sven on 1‘ criticised the ICC and Khan for, firstly, the well-known 'equivalence allegation'; in addition, he found Khan arbitrary for not prosecuting Assad (Syria) and Maduro (Venezuela). One wonders if this MP is familiar with the fact that the ICC has no jurisdiction over Syria and that the investigation into Venezuela is currently ongoing.
One might expect more caution from Germany, the UK and especially the Netherlands, the host country of the ICC, when it comes to criticising Khan and the ICC. The ICC is still a relatively fragile institution and ultimately has to rely, especially in tougher times, on support and loyalty from its state parties. At the very least, state parties should emphasize that the prosecutor and the ICC operate fully independently.
The overall position of the Netherlands with regard to the conflict in Gaza needs in my view to be reconsidered in light of the development of Khan’s application for arrest warrants. I would like to make two points.
With Khan stating so clearly that there is strong evidence that Israel is guilty of various war crimes and crimes against humanity in Gaza, the Netherlands would wisely refrain from any - military - support to Israel in order not to be complicit in the commission of these crimes (see my blog). The ICC prosecutor’s application puts the Dutch state's pending cassation against the Hague Appeal Court's ruling that the Netherlands may not supply F35 parts to Israel in my view in a different light; it might be wise to withdraw that cassation.
In addition, it seems to me that the time has now come for the Netherlands to condemn Israel's actions in Gaza and to accept any policy consequences of such condemnation. This is what it now says on the Dutch government’s website:
The Netherlands strongly condemns terrorist organisation Hamas' attack. Hamas' attack consisted of targeted killings and rocket attacks on Israeli cities, making no distinction between military targets and civilians. Civilians were used as human shields.
In addition, the Netherlands also wants Israel's actions to comply with international law, including humanitarian law of war. It therefore calls on Israel to act with demonstrable restraint. This means there must be a balance between humanitarianism and military necessity.
The second part of this text is obviously in need of revision.
5. A critical note – the role of the 'Experts Panel'
While I am mostly positive about the request for arrest warrants and the ICC prosecutor's actions in the Gaza conflict so far, I do have a critical comment to make. In arriving at his 'prosecution decision', Khan took advice from an external Panel of six experts; they reviewed the evidence at his request and indicated unanimous support for the prosecutor's verdict.
I have no doubt that Khan involved this Panel from the point of view of due diligence. Such a course of action is also not highly unusual; in the Netherlands, in sensitive and complex cases, the prosecution also occasionally seeks advice from a so-called external ‘reflection chamber’ (see, for example, here). But in this case, it does not seem wise to me.
First, Khan has hundreds of highly competent staff in his office specializing in every aspect of international criminal law; in other words, he does not need to rely on external expertise.
Furthermore, the panel consists of five UK nationals and one American; Khan himself is British. To be credible and have more authority, in the context of a universal international criminal tribunal, he should have composed this panel in a more diverse manner.
Finally, the panel included a former ICC judge (Fulford) and a former ICTY judge (Meron). As far as I am concerned, these persons should not have been asked or should themselves have declined the invitation. I do not consider it appropriate for former judges of international tribunals to advise the ICC prosecutor, to evaluate evidence and thereby sitting on the chair of the Pre-Trial Chamber.
This is a minor shortcoming, which, as far as I am concerned, should not attract too much attention.
6. Conclusion
ICC Prosecutor Khan's request for arrest warrants against three Hamas leaders and Israeli government members Netanyahu and Gallant marks a significant and potentially transformative development in discussions surrounding the Gaza conflict. After months of worldwide debate and discussion over whether Israel's actions constitute international crimes in Gaza, and amidst diverse interpretations of evidence and international law from various perspectives, it is encouraging to see an authoritative body articulating its – first - stance on the matter.
In my view, the position Khan takes on crimes committed in the Gaza conflict represents a triumph of justice, as Lady Justice's well-known blindfold ensures that only evidence and the law, and not the status of individuals as terrorists or democratically elected leaders, guide the proceedings. It also represents a triumph of justice in that the acquis of international criminal law, in which the protection of vulnerable persons is paramount, is not opportunistically cast aside because it would - politically - be more convenient.
The prosecutor is clear: both sides in the conflict committed - on the basis of the evidence - very serious war crimes and crimes against humanity. By including in the accusations extermination as a crime against humanity, both sides in the conflict are only a small step away from genocide, the most serious international crime.
(International) criminal law is not a race in suffering, nor a matter of a binary good-evil relationship; in war, evil can be on both sides, as Khan convincingly points out in this application for arrest warrants. Why is this so difficult to accept?
[1] The full names of the intended suspects and 'positions': 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; Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel.
