ICC prosecutor seeks arrest warrants for Netanyahu and Hamas leaders

(JTA) — The prosecutor for the International Criminal Court is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant as well as the leadership of Hamas for war crimes and crimes against humanity.

The charges Karim Khan announced Monday against Netanyahu and Gallant — the first ever to charge Israeli leaders by name — echo accusations Israel’s critics have made for months surrounding the war in Gaza: They include starvation as a means of war, willful killing and intentionally targeting civilians and crimes against humanity, including extermination.

“These individuals through a common plan have systematically deprived the civilian population of Gaza of objects indispensable to human survival,” Karim Khan said of Netanyahu and Gallant in a video posted on the ICC website.

The warrants, which must be approved by the ICC’s panel of judges, could inhibit the movement of Gallant and Netanyahu as they seek to drum up diplomatic and material support for Israel’s war against Hamas. The United States, which like Israel is not an ICC signatory, will not honor the warrants, but the leaders could be at risk if they enter the borders of ICC member countries, which include most of Europe, South America and Africa in addition to other nations. 

The ICC has been investigating separate war crimes charges against Israeli leaders for years, though that probe has not led to warrants. The court says it has authority because Palestine — recognized by the court as a state — is a member of the ICC.

Israel as a nation is already under investigation in the International Court of Justice — like the ICC, based in the Hague — on charges of genocide. The ICJ tries nations while the ICC tries individuals.

Israel has yet to comment on the announcement, but Netanyahu and others have described any efforts to prosecute Israel or its officials as a calumny against a democracy with an independent judiciary fighting a defensive war. In April, Netanyahu said ICC arrest warrants against Israelis “would be an outrage of historic proportions.”

Other Israeli officials condemned the warrants. 

“Placing the leaders of a state that is battling to defend its people alongside bloodthirsty terrorists is moral blindness and a blow to [Israel]’s duty and ability to defend its citizens,” Benny Gantz, a centrist member of Israel’s war cabinet who has himself publicly criticized Netanyahu, said in a statement on Monday. “Accepting the position of the prosecutor would be a historic crime that will not be erased.”

The Biden administration had yet to comment after Khan announced his request before 7 a.m. Washington time, but its officials have adamantly opposed the ICJ investigation. Last month, 12 Republican senators warned Khan that he, his staff and their families would face sanctions if he proceeded, although it is not clear how Republican senators, in the minority, could effect such sanctions. “You have been warned,” concluded the letter, spearheaded by Arkansas Sen. Tom Cotton. 

The Trump administration in 2020 imposed sanctions on members of the court for its investigations of American officials, which the Biden administration has since lifted.

In an allusion to such threats, Khan said those who seek to interfere with the court could face obstruction charges. “I insist that all attempts to impede, intimidate or improperly influence the officials of this Court must cease immediately,” he said in a statement. 

The statement also lists top Hamas officials Yahya Sinwar, Mohammed Al-Masry and Ismail Haniyeh as targets for the crimes of extermination, murder, sexual violence and taking hostages. Khan made clear he believes Hamas to be the aggressor, but says it does not absolve Israel.

“Israel like all states has the right to defend its population,” he said. “It has every right to ensure the return of hostages that have been criminally and callously taken. Those rights, however, do not absolve Israel of its obligations to comply with international humanitarian law, intentionally causing death, starvation, injury and suffering to the civilian population, including so very many women and children.”

Hamas launched the war on Oct. 7 when its terrorists killed approximately 1,200 people inside Israel and abducted some 250 hostages. Since then, the Hamas-run Gaza health ministry says that more than 35,000 Palestinians have been killed in Gaza. The ministry does not distinguish between civilians and combatants. Israel has estimated that a third of the casualties are combatants. More than 270 Israeli soldiers have been killed since Israel invaded Gaza in October.

International health officials also say the enclave of more than 2 million people is facing a humanitarian crisis.

One of the Israeli organizations representing the families of the 130 or so hostages still held captive welcomed Khan’s intention to issue warrants for the arrests of the Hamas leaders, but said it was uncomfortable with equivalence between them and Israelis.

“The Families Forum is not comfortable with the equivalence drawn between Israel’s leadership and the terrorists of Hamas,” said a statement by the Hostages and Missing Families Forum. “We believe the way to prove this distinction to the world is by immediately entering into negotiations that will free the hostages – the living for rehabilitation, and the deceased for burial.”

Israeli officials have said that, while Israel is not an ICC member, it meets its standards of “complementarity,” meaning that it has a functioning independent judiciary system that is up to the task of trying Israeli officials who commit war crimes.

Khan suggested that his office would continue to assess whether Israel met the complementarity standard, but sounded skeptical that it applied in this case. 

“Complementarity requires us to defer to national authorities only when they sincerely engage in independent and impartial judicial processes that do not shield suspects from accountability and which are not a sham,” he said.

Khan has been under intense pressure to bring charges against Israel by other countries whose officials he has investigated or charged, including Libya and Russia, where President Vladimir Putin has a warrant for his arrest. He appeared in his statement to be sensitive to those pressures.

“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 complete collapse,” he said.