ICC Prosecutor Seeks Arrest Warrants for Netanyahu, Hamas Leaders

The International Criminal Court is seeking arrest warrants against top Israeli leaders and senior Hamas officials for alleged “war crimes and crimes against humanity” committed during the ongoing war in Gaza, the court’s top prosecutor announced on Monday.

Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as Yahya Sinwar, the most senior Hamas leader in Gaza, and two of the group’s other top officials—Mohammed Diab Ibrahim al-Masri and Ismail Haniyeh—all now face the prospect of a formal international criminal arrest warrant. The ICC’s top prosecutor, Karim Khan, will next file the docket of charges to a panel of ICC judges for review. The court’s judges will then determine whether or not to issue the warrants.

If approved, the warrants would mark the first time that the leader of a major U.S. international partner has faced ICC charges. The news swiftly led to a wave of criticism from the United States, Israel, and some in Europe against the ICC for what they argued equated Israeli leaders with the heads of a terrorist organization.

U.S. President Joe Biden called the application “outrageous.” And U.S. Secretary of State Antony Blinken insisted that the ICC had no jurisdiction over the case because neither side is party to the ICC, although the court has recognized Palestine as a member party since 2014 and ruled in 2021 that it had jurisdiction over allegations of war crimes in Gaza. Blinken also said that by applying for arrest warrants for both top Israeli officials and Hamas, Khan was unfairly assigning moral equivalence between a U.S. ally and a terror group. By seeking a warrant now, Blinken argued, the ICC did not give Israel time to investigate the alleged crimes itself. “We reject the Prosecutor’s equivalence of Israel with Hamas,” Blinken said. “It is shameful.”

The ICC’s “proposal to issue an arrest warrant for the representatives of a democratically elected government together with the leaders of an Islamist terrorist organisation is appalling and completely unacceptable,” Petr Fiala, the prime minister of the Czech Republic, said in a post on X. “We must not forget that it was Hamas that attacked Israel in October and killed, injured and kidnapped thousands of innocent people. It was this completely unprovoked terrorist attack that led to the current war in Gaza and the suffering of civilians in Gaza, Israel and Lebanon.”

In Washington, meanwhile, Republican lawmakers have introduced a bill that would sanction ICC officials seeking to prosecute Americans or the citizens of major U.S. allies and partners—legislation that is unlikely to pass but which underscores the sharp new backlash that the ICC now faces in Washington.

With regard to Netanyahu and Gallant, the ICC prosecutor’s office stated that it has “reasonable grounds to believe” that the two men “bear criminal responsibility” for war crimes and crimes against humanity, including using the starvation of civilians as a method of warfare, denying humanitarian relief supplies, causing extermination, and deliberately targeting civilians amid Israel’s war against Hamas in Gaza.

For Sinwar and his Hamas lieutenants, the prosecutor’s office similarly charges them with criminal responsibility for war crimes and crimes against humanity, including murder, taking hostages, rape, torture, and cruel treatment of hostages, and extermination since at least Oct. 7, 2023, the date of the major Hamas attack on Israel. 

“Israel, like all states, has the right to defend its population,” Khan said in a recorded statement that was released by the court alongside a CNN interview. “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, and injury, and suffering to the civilian population, including so very many women and children, are criminal means to achieve military and political goals. That’s what we allege,” Khan added. “Those who do not comply with the law should not comply later when my office takes action based upon solid evidence.”

The decision could permanently damage the court’s tenuous relationship with Washington regardless of whether the arrest warrants on Netanyahu and Gallant move forward, as Khan’s announcement is likely to derail a careful but significant shift in U.S. policy toward the ICC under the Biden administration.

Last year, Biden for the first time authorized the U.S. government to begin sharing evidence of Russian war crimes in Ukraine with the ICC—overriding pushback from top U.S. defense officials who worried it could set a precedent for the court to one day prosecute U.S. troops. The Biden administration has also championed ICC investigations into the ongoing civil war in Sudan, including debating whether to share U.S. information with the ICC regarding atrocities and war crimes committed there.

This shift on Ukraine marked a departure from decades of U.S. distrust and wariness over the international court’s jurisdictions, with many successive administrations arguing that the court should not exercise any jurisdiction over citizens of countries that are not a party to the founding treaty that established the ICC. One hundred and twenty four countries are parties to the treaty, including many U.S. allies in Europe. The United States and Israel, as well as Russia, are not.

Yet Biden’s decision to back the ICC’s prosecution efforts against Russia may put the United States in a new political bind and open it to new criticisms of double standards in its support for Israel.

“It’s obviously extremely awkward because the Biden administration supported the arrest warrants against [Russian President] Vladimir Putin, and Russia is not a party to the ICC, and Putin is a head of state,” said Adil Haque, a professor of law at Rutgers University. “The Biden administration has sort of forfeited some of their legal objections to charges against Israeli leaders.”

Haque added that the Biden administration might have a face-saving fallback position: to argue that Palestine isn’t a state and therefore can’t consent to ICC jurisdiction.

But the move could also increase pressure on Israel at the United Nations. In addition to limiting travel for Netanyahu and Gallant to the 124 nations that are party to the ICC, it is likely to get certain U.N. member states such as South Africa—which have asked the International Court of Justice to order Israel to allow investigators, journalists, and fact-finders into the Gaza Strip—to ramp up their pressure campaign.

“It will push Israel—not just the people indicted, but Israel as a country—most likely in a more of an isolated corner even than it already is,” said Scott Anderson, a fellow in governance studies at the Brookings Institution.

Since the arrest warrants have yet to be issued, under the law, Israel can head off prosecutions of Netanyahu and Gallant by pursuing domestic criminal proceedings against the two men, potentially triggering a complementarity clause under the Rome Statute, which says that the ICC can’t admit a case that’s currently being investigated by a state that has jurisdiction over the charges.

Other legal experts said that the charges, despite Western backlash, were a sign that international law is alive and well even at a time of intense upheaval in the Middle East.

“There has been skepticism about whether international criminal law is going to live up to its aspirations and deliver equal justice under the law,” said Haque. “The fact that these charges are being brought against both Hamas leaders and Israeli leaders, I think, is very significant.”

Update, May 20, 2024: This story has been updated to include comments from top Biden administration officials.