After weeks of speculation and an open letter from American politicians warning against such, the International Criminal Court (ICC) prosecutor Karim Khan has announced that the ICC is seeking arrest warrants for two Israeli leaders and three Hamas leaders:
- Israeli Prime Minister Benjamin Netanyahu
- Israeli Minister of Defence Yoav Gallant
- Hamas leaders:
- Head of the Islamic Resistance Movement Yahya Sinwar
- Commander-in-chief of military wing of Al-Qassam Brigades, Mohammed Diab Ibrahim Al-Masri (aka Mohammed Dief)
- Head of Political Bureau, Ismail Haniyeh
Netanyahu and Gallant are the two members listed from the three leaders who retain the final vote in the Israeli war cabinet.
War cabinet minister Benny Gantz was not named in the application. Gantz recently delivered an ultimatum to Netanyahu, calling on the Prime Minister to meet the expectations of a six-point plan regarding the war on Gaza and its aftermath by June 8. If the Prime Minister does not comply, Gantz has threatened to withdraw his party from Netanyahu’s “broadened emergency coalition.”
Khan specified various war crimes and crimes against humanity for all parties, and noted that his 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.”
He also emphasised complementarity as the governing notion behind the role of the ICC. It relates to admissibility of cases, based on how well the matter is already being dealt with in a national jurisdiction.
Khan reiterated that complementarity would require “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.”
The next step for the ICC Pre-Trial Chamber is to consider the application before making the warrants official. When the arrest warrants are issued, the named leaders will be at risk of arrest across 124 states.
Netanyahu reacted with rejection and “disgust” over the comparison “between democratic Israel and the mass murderers of Hamas”, while Gallant called the move “despicable.”
Israeli Foreign Minister Israel Katz said that he has met with the lobby group American Israel Public Affairs Committee (AIPAC), and called upon them to “work with the [US] administration and Congress to take dramatic steps against the decision”.
President of South Africa Cyril Ramaphosa welcomed the application, as his nation continues its case at the International Court of Justice (ICJ).Nicaragua, Colombia, and Libya have formally applied to intervene alongside South Africa. Further states intending to intervene include the Maldives, Egypt, Türkiye, Ireland, and Belgium.
Australian PM Anthony Albanese has attracted criticism from various sides of the political spectrum after refusing to answer questions regarding the ICC’s application.
“I don’t comment on court processes in Australia, let alone court processes globally, that which Australia is not a party,” Albanese said.
The Department of Foreign Affairs and Trade later put out a statement emphasising that “Australia respects the ICC and the important role it has in upholding international law” and that Hamas is recognised as a terrorist organisation, therefore bearing “no equivalence” to Israel.
The US’s stance was one that “fundamentally rejects” the ICC’s “outrageous” application.
“And let me be clear: whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas,” President Joe Biden said, “we will always stand with Israel against threats to its security.”
“What’s happening is not genocide,” he added.
US State Department spokesperson Matthew Miller also said he does not believe the ICC has jurisdiction over Israel or Hamas. Miller elaborated that Hamas could be held accountable “through the prosecution of the war effort by Israel, it could be by being killed, or…being brought to justice in an Israeli court.”
Notably, the USA was involved in the creation of the ICC, but after signing the Rome Statute, did not ratify the agreement under domestic law. Israel is not a state party to the court either.
Nimer Sultany, reader in public law, was one of a few commentators to write on Twitter (X) that the ICC has taken a both-sides or neutral approach by equating Israel and Hamas. By naming two Israeli leaders to three Hamas leaders, and Hamas’s eight crimes to Israel’s seven, Sultany says that while the ICC prosecutor “seeks to charge two of those most responsible”, the “asymmetry in the infliction of violence and ferocity and length in which Israeli leaders committed their crimes” cannot be ignored.
This ICC Application follows recent ICJ proceedings were provisional measures have been indicated in the case of a plausible genocide in Gaza.