THE media reported on Monday (May 20) that the International Criminal Court’s (ICC) prosecutor had requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu, his defence chief and three Hamas leaders over alleged war crimes.
ICC prosecutor Karim Khan was reported to have said that after over seven months of war in Gaza, he had reasonable grounds to believe that they all “bear criminal responsibility” for alleged war crimes and crimes against humanity.
The arrest warrants are for Israel’s Netanyahu and Yoav Gallantas, and Hamas’ Yahya Sinwar, Mohammed Al-Masri and Ismail Haniyeh.
In respect of the application for arrest warrants against Netanyahu and Gallants, Karim stated that both formed “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 charges that the application covers include the war crime of “intentionally using starvation of civilians as a method of warfare, as well as various other war crimes and crimes against humanity associated with starvation and other acts of violence against the Gazan civilian population”.
Regarding the Hamas leaders, the ICC prosecutor stated that they are concerned with the murder of hundreds of civilians on October 7, 2023, and the taking of at least 245 hostages. The charges include crimes against humanity, murder, rape and torture, and the war crimes of hostage-taking, rape and other forms of sexual violence, torture, cruel treatment, and outrages upon personal dignity for acts committed against the hostages while in captivity.
Little, if at all, was reported that the arrest warrant applications have been made following the advice of a panel of international law experts, which was convened at the request of the ICC prosecutor in January 2024 to support the evidence review and legal analysis.
The panel of experts’ mandate is to advise the ICC prosecutor on whether his applications for arrest warrants meet the standard provided in Article 58 of the Rome Statute of the ICC. Specifically, the panel has been asked to provide an opinion on whether there are “reasonable grounds to believe” that the persons named in the warrants have committed crimes within the jurisdiction of the court.
The panel is composed of the Who’s Who of public international law, international human rights law, international humanitarian law and international criminal law, supported by two eminent academic advisers.
Each panel member was asked to assess objectively the material provided to them by the ICC prosecutor and to advise the latter whether it meets the relevant legal test. During that time, the panel was engaged in an extensive process of review and analysis. This involved a careful review of each of the applications for arrest warrants as well as underlying evidence, including witness statements, expert evidence and authenticated videos and photographs obtained by ICC investigators.
Members of the panel also attended evidence review sessions at the ICC’s premises in the Hague and online. The panel operated pro bono and independently. Its report – Report of the Panel of Experts in International Law – dated May 20, is available here.
Israel slammed as a “historical disgrace” the demand targeting Netanyahu and Gallant, while Hamas said it “strongly condemns” the move.
Israel’s top ally, the United States, joined the condemnation. US President Joe Biden called the arrest warrant applications “outrageous”.
Has Biden read or been advised of the Report of the Panel of Experts in International Law?
The panel of experts unanimously agrees, among others, that the applications for arrest warrant demonstrate reasonable grounds to believe that the ICC has jurisdiction over the crimes set out in the applications, that these crimes were committed and that the suspects are responsible for them.
The panel is also satisfied that, having closely reviewed the applications and the underlying evidence presented in support of the applications, the ICC prosecutor’s process was fair, rigorous and independent, and that the prosecutor’s applications for arrest warrants are grounded in the law and the facts. – May 22, 2024
Hafiz Hassan is a reader of Scoop