The International Criminal Court (ICC) judges' decision to issue arrest warrants against senior Israeli leaders and a Hamas official in the face of strong opposition - including from the United States and Israel - deserves international support, Human Rights Watch said today.
On November 21, 2024, the ICC issued warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant of Israel, as well as Mohammed Diab Ibrahim al-Masri ("Mohammed Deif"), commander-in-chief of Hamas' military wing, the Qassam Brigades.
"The ICC arrest warrants against senior Israeli leaders and a Hamas official break through the perception that certain individuals are beyond the reach of the law," said Balkees Jarrah, associate international justice director at Human Rights Watch. "This is all the more important given the brazen attempts to obstruct the course of justice at the court. Whether the ICC can effectively deliver on its mandate will depend on governments' willingness to support justice no matter where abuses are committed and by whom."
The court's judges concluded that there are reasonable grounds to believe that Netanyahu and Gallant are responsible for war crimes and crimes against humanity in the Gaza Strip from at least October 8, 2023, including the starvation of civilians, intentionally directing attacks against a civilian population, murder, and persecution. The judges determined that there were reasonable grounds to believe that Deif is responsible for war crimes and crimes against humanity in Israel and Gaza since at least October 7, 2023, including extermination, murder, and hostage-taking.
The ICC prosecutor, Karim Khan, had announced on May 20 that he asked the court's judges to issue arrest warrants against Netanyahu, Gallant, Deif, the then-head of Hamas in Gaza Yahya Sinwar, and the former Hamas political bureau head, Ismail Haniyeh. Khan's office withdrew the application against Haniyeh after he was killed on July 31while visiting Tehran to attend Iran's presidential inauguration. The judges also confirmed the prosecutor's withdrawal of the application against Sinwar following the confirmation of his death.
The ICC judges' consideration of Khan's applications was deferred when the United Kingdom sought permission on June 10 to file an amicus curiae ("friend of the court") brief to argue that the Oslo Accords, the 1993 agreement between Israel and the Palestine Liberation Organization, barred the court's jurisdiction over Israeli nationals. The initiative appeared aimed at delaying a decision given that a separate panel of ICC judges previously confirmed the court's mandate, Human Rights Watch said.
The judges granted the United Kingdom's request and subsequently allowed 63 others - including states, intergovernmental organizations, academics, United Nations officials, and civil society organizations - to also file amicus briefs on the issue. Palestine participated in the process, but Israel did not make a submission at that time.
The United Kingdom abandoned its initiative following a change in government in July, but the process it triggered ultimately delayed the judges' decision on the warrants. Human Rights Watch, Amnesty International, and REDRESS had urged the new British Foreign Secretary David Lammy in July to drop the former UK government's plan to file an amicus brief.
In August, the groups also filed an amicus brief together with the Open Society Justice Initiative and the European Center for Constitutional and Human Rights, making the case that the Oslo Accords are irrelevant to the decision and that the accords do not prevent the court from exercising its jurisdiction.
On August 23, Khan's office filed its response to all the amicus briefs and asked the court's judges to decide on its application for arrest warrants with the "utmost urgency." Israel filed a brief on September 23 challenging the ICC's jurisdiction and asked the court's judges to dismiss the arrest warrant applications against Netanyahu and Gallant. Khan's office responded on September 27 calling on the ICC judges to reject Israel's challenge. On November 21, the judges considered such challenge "premature" and rejected it.
The earlier ICC panel of judges concluded in February 2021 that the ICC has jurisdiction over the situation in Palestine following a January 2020 request by the former prosecutor, Fatou Bensouda, seeking their guidance on the issue. Bensouda's office had concluded a nearly five-year-long preliminary inquiry into the Palestine situation in December 2019 and determined that all the necessary criteria to proceed with a formal investigation had been met. Her office opened an investigation in March 2021.
Palestine became an ICC member in 2015 and gave the court a mandate back to June 13, 2014, to address serious crimes committed on its territory or by its nationals since that date, including the 2014 hostilities in Gaza. In May 2018, Palestine formally asked the ICC prosecutor to investigate and affirmed its commitment to cooperate with the court. Israel signed but has not ratified the ICC treaty, and in 2002, it announced that it did not intend to become a court member.
In November 2023, Bangladesh, Bolivia, Comoros, Djibouti, and South Africa - all ICC member countries - referred the situation in Palestine to the court's prosecutor, referencing numerous war crimes, crimes against humanity, and the crime of genocide.
The same month, a number of Palestinian nongovernmental organizations submitted a brief urging the ICC prosecutor to consider including the crimes of apartheid and genocide as part of his ongoing investigation. Mexico and Chile also referred the Palestine situation to the court's prosecutor in January 2024.
The decision to issue the warrants comes as the court faces unprecedented pressure, Human Rights Watch said. In April, amid speculation that the warrants were imminent, 12 US senators threatened to sanction Khan if he pursued cases against top Israeli officials. Netanyahu also called on governments to prevent the court from issuing warrants. Khan's office denounced the threats, noting that the ICC can also prosecute individuals for obstructing justice.
At the end of May, the Guardian, +972 Magazine, and Local Call reported that Israeli officials have been conducting surveillance on senior ICC officials for nine years as part of a secret operation to thwart the court's Palestine investigation. On June 4, the US House of Representatives passed a bill aimed at imposing sanctions against the ICC, its officials, and those supporting investigations at the court involving US citizens or allies.
On June 14, 94 ICC member countries expressed their "unwavering support" for the court in the face of these threats. The joint statement followed similar expressions of support by several ICC member countries - including UN Security Council members- the high representative of the European Union, UN experts, and nongovernmental groups. ICC member countries should again reaffirm their commitment to defend the court, its officials, and those cooperating with it from any political interference and pressure, Human Rights Watch said.
On November 17, the incoming Senate majority leader John Thune called for immediate action on the US House of Representatives legislation and vowed to pursue sanctions as a "top priority in the next Congress."
In addition to strong political messaging in defense of justice, ICC members should also take concrete steps to limit or, where possible, nullify the effects of potential sanctions against the court. This should include the adoption or implementation of national or regional blocking statutes, such as the EU Blocking Statute.
Because the ICC has no police force of its own, it must rely on states to assist with arrests. All ICC member countries are obligated to cooperate in the arrest and surrender of people wanted by the court.
Lack of accountability for crimes committed in the context of hostilities between Israel and Palestinian armed groups has fueled abuses across the Middle East, including in Lebanon and Yemen. Lebanon should urgently give the ICC jurisdiction to enable the court's prosecutor to investigate grave international crimes committed there, Human Rights Watch said.
"These warrants should finally push the international community to address atrocities and secure justice for all victims in Palestine and Israel," Jarrah said. "After over a half-century of rampant impunity, those responsible for some of the gravest crimes should pay the price so that victims and survivors can obtain a measure of justice that has long eluded them."
