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ICC wants Hamas leaders, Netanyahu arrested for war crimes



ICC Prosecutor Karim A.A. Khan KC

The International Criminal Court (ICC) has sought an arrest warrant for Hamas leader, Yahya Sinwar, and Israeli Prime Minister Benjamin Netanyahu, for crimes against humanity over the situation in the State of Palestine.

This was contained in a statement issued by ICC Prosecutor Karim A. A. Khan KC entitled “Applications for arrest warrants in the situation in the State of Palestine“.

The statement was published by ICC on Monday, May 20, 2024, on its website.

ICC preliminary examinations

ICC Office of the Prosecutor, or OTP, is responsible for determining whether a situation meets the legal criteria established by the Rome Statute to warrant investigation.

For this purpose, the OTP conducts a preliminary examination of all communications and situations available.

The preliminary examination of a situation by the Office may be initiated on the basis of:

a) information sent by individuals or groups, States, intergovernmental or non-governmental organisations;

b) a referral from a State Party or the United Nations Security Council; or,

(c) a declaration lodged by a State accepting the exercise of jurisdiction by the Court pursuant to article 12(3) of the Statute.

Once a situation is identified, the factors in the Statute establish the legal framework for preliminary examination.

ICC versus Sinwar, Al-Masri (Deif) and Haniyeh

Khan said the application was made based on evidence collected and examined by his office.

He called on ICC to issue arrest warrant for the following Hamas leaders:

  1. Yahya Sinwar (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip),
  2. Mohammed Diab Ibrahim Al-Asri, more commonly known as Deif (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and,
  3. Ismail Haniyeh (Head of Hamas Political Bureau).

ICC Prosecutor said the three bear criminal responsibility for war crimes and crimes against humanity.

The crimes, he said, were committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023.

Grounds for ICC prosecution

The ICC Prosecutor the following grounds for the reliefs sought:

  • “Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;
  • Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);
  • Taking hostages as a war crime, contrary to article 8(2)(c)(iii);
  • Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;
  • Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;
  • Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;
  • Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and,
  • Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

Khan submitted that the war crimes alleged in these applications were committed in the context of international and non-international armed conflict between Israel and Hamas.

He further submitted 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.

The attacks were perpetrated by Hamas’ military wing, the al-Qassam Brigades, and other armed groups on Oct. 7.

According to him, there are reasonable grounds to believe that Sinwar, Deif and Haniyeh are criminally responsible for the killing of hundreds of Israeli civilians.

At least, 245 persons were taken hostages.

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The evidence

The ICC Prosecutor said his office interviewed victims and survivors, including former hostages and eyewitnesses from six major attack locations, as part of our investigations.

The locations include Kfar Aza; Holit, the location of the Supernova Music Festival; Be’eri; Nir Oz; and Nahal Oz.

The investigation also relied on evidence such as CCTV footage, authenticated audio, photo and video materials.

He also took cognisance of statements by Hamas members including the alleged perpetrators, and expert evidence.

He said: “It is the view of my Office that these individuals planned and instigated the commission of crimes on 7 October 2023, and have through their own actions, including personal visits to hostages shortly after their kidnapping, acknowledged their responsibility for those crimes.

“We submit that these crimes could not have been committed without their actions.

“They are charged both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.

“During my own visit to Kibbutz Be’eri and Kibbutz Kfar Aza, as well as to the site of Supernova Music Festival in Re’im, I saw the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today.

“Speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness.

“These acts demand accountability.”

Hostages taken from Israel kept in inhumane conditions

Khan held that there are reasonable grounds to believe that hostages taken from Israel have been kept in inhumane conditions.

Those conditions, he held, include subjection to sexual violence, including rape, while being held in captivity.

That conclusion was reached based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors.

“My Office also continues to investigate reports of sexual violence committed on 7 October,” he added.

Khan expressed gratitude to the survivors, and the families of victims of the 7 October attacks, for their courage in coming forward to provide their accounts.

He assured that ICC will deepen investigations of all crimes committed and ensure that justice is delivered.

He reiterated calls for the immediate release of all hostages taken from Israel and for their safe return to their families.

“This is a fundamental requirement of international humanitarian law,” he asserted.

ICC versus Netanyahu and Yoav Gallant

ICC Persecutor similarly indicted Israeli Prime Minister, Netanyahu, and the Minister of Defence, Yoav Gallant.

He said the two bear criminal responsibility for war crimes and crimes against humanity.

The said crimes, he noted, were committed on Palestinian territory in the Gaza strip from at least 8 October 2023.

Israeli Prime Minister Benjamin Netanyahu

Israeli Prime Minister Benjamin Netanyahu

ICC indicted Netanyahu and Gallant in starvation of civilians and willfully causing great suffering.

Other charges include serious injury to body or health, willful killing and intentionally directing attacks against a civilian population.

The rest are extermination and/or murder, persecution and other inhumane acts contrary to various articles of the Rome Statute.

Crime charges

Khan submitted that the war crimes alleged were committed in the context of an international and non-international armed conflict between Israel and Hamas and other armed Palestinian groups.

He held that the crimes were committed as part of a widespread and systematic attack against Palestinian civilians.

He similarly submitted that the evidence presented was based on interviews with survivors and eyewitnesses.

Other sources are authenticated video, photo, audio material, satellite imagery and statements from perpetrators.

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He said: “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,” Khan submitted.

Starvation and other acts of violence against Palestinians

Khan alleged a common plan to use starvation and other acts of violence against Gazan civilian population.

The purpose, he said, include to:

(i) eliminate Hamas;

(ii) secure the return of the hostages which Hamas has abducted, and,

(iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.

The effects of starvation include malnutrition and dehydration which led to profound suffering and increasing number of deaths.

The victims are the Palestinian population, including babies, other children and women.

He charged two of those most responsible, Netanyahu and Gallant, both as co-perpetrators and as superiors.

He noted: “Israel, like all States, has a right to take action to defend its population.

“That right, however, does not absolve Israel… 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.”

ICC charged Israel to take urgent action to immediately allow access to humanitarian aid in Gaza, in line with international humanitarian law.

“Starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences,” he stressed.

“Those who do not comply with the law should not complain later when my Office takes action,” Khan asserted.

He insisted that ICC exercises criminal jurisdiction in Palestine, extending to Gaza, West Bank and East Jerusalem.

Means to the application

The means to the application resulted from independent and impartial investigation conducted by ICC.

Khan said: “Today’s applications are the outcome of an independent and impartial investigation by my Office.

“Guided by our obligation to investigate incriminating and exonerating evidence equally, my Office has worked painstakingly to separate claims from facts and to soberly present conclusions based on evidence to the Pre-Trial Chamber.”

He expressed gratitude to a panel of experts in international law, an impartial group, for candid advice.

The Panel is composed of experts of immense standing in international humanitarian law and international criminal law.

It includes Sir Adrian Fulford PC, a former Lord Justice of Appeal and former International Criminal Court Judge.

It also includes Baroness Helena Kennedy KC, International Bar Association’s Human Rights Institute President.

Others are Elizabeth Wilmshurst CMG KC, former Deputy Legal Adviser at the UK Foreign and Commonwealth Office, as well as Danny Friedman KC.

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It also includes two of Khan’s Special Advisers – Amal Clooney and His Excellency Judge Theodor Meron CMG.

It also includes two of Khan’s Special Advisers – Amal Clooney and His Excellency Judge Theodor Meron CMG.

Independent expert analysis

The ICC Prosecutor cited also cited independent expert analysis as support and strength of the applications.

“This independent expert analysis has supported and strengthened the applications filed today by my Office.

“I have also been grateful for the contributions of a number of my other Special Advisers to this review, particularly Adama Dieng and Professor Kevin Jon Heller.

“Today we once again underline that international law and the laws of armed conflict apply to all.

“No foot soldier, no commander, no civilian leader – no one – can act with impunity.

“Nothing can justify willfully depriving human beings, including so many women and children, the basic necessities required for life.

“Nothing can justify the taking of hostages or the targeting of civilians.

“The independent judges of the International Criminal Court are the sole arbiters as to whether the necessary standard for the issuance of warrants of arrest has been met.

“Should they grant my applications and issue the requested warrants, I will… apprehend the named individuals.

“I count on all States Parties to the Rome Statute to take these applications and the subsequent judicial decision with the same seriousness they have shown in other Situations, meeting their obligations under the Statute.

“I also stand ready to work with non-States Parties in our common pursuit of accountability,” he emphasised.

Independent and impartial approach

Khan urged his Office and all of ICC, including judges, to do their work with full independence and impartiality.

“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,” he insisted.

The prosecutor decried ongoing allegations and “emerging evidence of international crimes” in Israel, Gaza and the West Bank.

These include reports of sexual violence on October 7 and the attendant large-scale bombing.

The bombing, he noted, has led to many civilian deaths, injuries, and suffering among Gaza populace.

He urged anyone with relevant information to contact his office and to submit information via OTP Link.

“My Office will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met,” he stated, calling on all parties to comply with the law..

According to him, failure to demonstrate willingness to apply the law equally, rather selectively, will create conditions for its collapse.

“We will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering.

“This is the true risk we face in this moment,” the ICC axe man warned.

“This is how we will prove, tangibly, that the lives of all human beings have equal value,” he concluded.

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