ICC prosecutor seeks Gaza ‘war crimes’ arrest warrant for Netanyahu, Hamas leaders

A Palestinian man carries his belongings at the site of an Israeli strike on a house, in Rafah, in the southern Gaza Strip on 20 May, 2024Reuters

The prosecutor of the International Criminal Court on Monday applied for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and top Hamas leaders on suspicion of war crimes and crimes against humanity.

Karim Khan said he was seeking warrants against Netanyahu and Israeli Defence Minister Yoav Gallant for crimes including “starvation”, “wilful killing”, and “extermination and/or murder”.

“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,” said Khan in reference to Netanyahu and Gallant.

The charges laid against the Hamas leaders including Yahya Sinwar, the head of the movement in Gaza, and Ismail Haniyeh, the movement’s political chief, include “extermination”, “rape and other acts of sexual violence”, and “taking hostages as a war crime”.

“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,” said the statement.

The ICC prosecutor in 2021 opened a probe into Israel as well as Hamas and other armed Palestinian groups for possible war crimes in the Palestinian territories.

Israel’s Prime Minister Benjamin Netanyahu attends a special session to vote on a new government at the Knesset in Jerusalem, on 13 June, 2021

Khan has said this investigation now “extends to the escalation of hostilities and violence since the attacks that took place on 7 October, 2023”.

He has also called several times for all hostages in Gaza to be released and warned against Israeli military action in Rafah.

“All wars have rules and the laws applicable to armed conflict cannot be interpreted so as to render them hollow or devoid of meaning,” he said in February.

“This has been my consistent message, including from Ramallah last year. Since that time, I have not seen any discernible change in conduct by Israel,” he added at the time.

The court in January also said it was investigating potential crimes against journalists since the outbreak of hostilities.

Legal experts have told AFP that Hamas and Israel could face war crimes charges over the conflict.

Hamas Gaza Chief Yahya Al-Sinwar, Hamas Chief Ismail Haniyeh and senior Hamas leader Khalil al-Hayya arrive at the Rafah border crossing in the southern Gaza Strip on 19 September, 2017

“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,” said the prosecutor.

‘Significant volume’

If granted, the warrant means that technically any of the 124 ICC member states would be obliged to arrest Netanyahu if he travelled there.

But while the warrant could complicate some travel for Netanyahu, the court has no mechanism to enforce its warrants, relying on its members to play ball.

Rumours the court was about to take action had swirled for weeks, prompting Netanyahu to publish his reaction beforehand.

Israel would “never accept” the ICC’s “outrageous” rulings, Netanyahu said in a message on X, formerly Twitter. “We will not bow to it.”

Five countries in mid-November called for an ICC probe into the Israel-Hamas war, with Khan saying his team had gathered a “significant volume” of evidence on “relevant incidents”.

But ICC teams have not been able to enter Gaza or investigate in Israel, which is not an ICC member.

Nevertheless, Khan did visit Israel in November “at the request” of survivors of the 7 October Hamas attacks.

He then travelled to Ramallah in the occupied West Bank to meet senior Palestinian officials.

Opening its doors in 2002, the ICC is the world’s only independent court set up to probe the gravest offences including genocide, war crimes and crimes against humanity.

It is a “court of last resort” and only steps in if countries are unwilling or unable to investigate cases themselves.

It hit the headlines in March 2023 when it issued an arrest warrant for Russian President Vladimir Putin on the war crime accusation of unlawfully deporting Ukrainian children.

The court also issued a warrant against Maria Lvova-Belova, Russia’s presidential commissioner for children’s rights, on similar charges.