On 20 May 2024, International Criminal Court (ICC) prosecutor Karim A.A. Khan submitted applications for arrest warrants in the ‘situation in the State of Palestine.’ Based on evidence from a series of interviews, CCTV footage, authenticated audio and video material, statements from Hamas members and expert evidence, he submits he has ‘reasonable grounds to believe that’ three individuals — Yahya Sinwar (Head of the Islamic Resistance Movement (‘Hamas’), Mohammed Diab Ibrahim Al-Masri, commonly known as Deif (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail Haniyeh (Head of Hamas Political Bureau) — ‘bear criminal responsibility’ for ‘war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine.’
Karim Khan submitted that they are ‘criminally responsible’ for ‘killing of hundreds of Israeli civilians’ and for committing heinous crimes such as ‘extermination,’ ‘murder,’ ‘taking hostages,’ ‘rape’ and ‘acts of sexual violence,’ ‘torture,’ ‘cruel treatment,’ ‘outrages upon personal dignity’ and ‘other inhumane acts’ as ‘part of a widespread and systematic attack against the civilian population of Israel.’
Charging them as ‘co-perpetrators’ under Articles 25 and 28 of the Rome Statute, he submitted 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.’
Hostages taken from Israel were kept in inhumane conditions. Some have been subject to sexual violence while being held in captivity. He submits that these ‘unconscionable crimes,’ which inflicted ‘unfathomable pain through calculated cruelty and extreme callousness,’ ‘could not have been committed without their actions.’
He called for the immediate release of all hostages taken from Israel and demanded accountability for their actions.
Karim Khan has also submitted that Benjamin Netanyahu, the Prime Minister of Israel and Yoav Gallant, the Minister of Defence of Israel, ‘bear criminal responsibility for the following war crimes and crimes against humanity.’
He submits that they starved civilians, wilfully killed and caused great suffering, intentionally directed attacks against the civilian population, exterminated, murdered and committed other inhumane acts ‘through the imposition of a total siege over Gaza’ and by ‘arbitrarily restricting the transfer of essential supplies – including food and medicine.’
The ‘war crimes,’ he says, were ‘committed as part of a widespread and systematic attack against the Palestinian civilians pursuant to State policy,’ which ‘continue to this day.’
Based on the evidence – including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, and satellite imagery – he submits, ‘Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.’
My Office 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…The effects of the use of starvation as a method of warfare, together with other attacks and collective punishment against the civilian population of Gaza are acute, visible and widely known, and have been confirmed by multiple witnesses interviewed by my Office, including local and international medical doctors. They include malnutrition, dehydration, profound suffering and an increasing number of deaths among the Palestinian population, including babies, other children, and women.
Famine is present in some areas of Gaza and is imminent in other areas. As UN Secretary-General António Guterres warned more than two months ago, ‘1.1 million people in Gaza are facing catastrophic hunger – the highest number of people ever recorded – anywhere, anytime’ as a result of an ‘entirely manmade disaster.’
Khan sought to charge two of those most responsible, Netanyahu and Gallant, both as ‘co-perpetrators’ pursuant to Articles 25 and 28 of the Rome Statute.
He added, ‘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.’
In presenting these applications for arrest warrants, under its mandate under the Rome Statute, the ICC can ‘exercise its criminal jurisdiction in the Situation in the State of Palestine, and the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.’
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 wilfully 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.’
If we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, 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…Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my Office and the Court. This is how we will prove, tangibly, that the lives of all human beings have equal value.
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