ICC seeks arrest warrants for Israeli PM Benjamin Netanyahu and Hamas leaders – reactions

International Criminal Court (ICC) prosecutor Karim Khan on Monday said he had applied for arrest warrants for Hamas’ top brass, Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for war crimes and crimes against humanity in the ongoing war between the two enemies.

https://www.youtube.com/watch?v=5GADg_WRvrw

His announcement has been hailed as a “massive step in terms of accountability in relation to the conflict in Palestine”. Pretoria has long demanded ICC indictments against Netanyahu and other Israeli leaders, suspecting they were being shielded by the US in particular.

On Monday night, the Presidency welcomed the ICC announcement.

“The law must be applied equally to all in order to uphold the international rule of law, ensure accountability for those that commit heinous crimes and protect the rights of victims,” Presidency spokesperson Vincent Magwenya said.

In a statement, Khan said he was filing applications for arrest warrants before Pre-Trial Chamber 1 for Hamas’ chief in the Gaza Strip, Yahya Sinwar; the commander of its military wing, Mohammed Diab Ibrahim Al-Masri; and the organisation’s political bureau leader, Ismail Haniyeh.

He said he was also asking the judges for arrest warrants for Netanyahu and Gallant.

The warrants of arrest are for war crimes and crimes against humanity in relation to Hamas’ attack on Israel on 7 October and Israel’s retaliatory assault on the Gaza Strip. Khan’s requests still need to be granted by the judges of Pre-Trial Chamber 1.

Read more Daily Maverick: ICC prosecutor seeks arrest warrants for Netanyahu, Hamas chiefs

The announcement of an arrest warrant is a blow to Netanyahu who, if a warrant is issued, will face restrictions on his travel. It is also likely to fuel public criticism of Israel’s ongoing war against Hamas.

The ICC has previously issued arrest warrants for Libya’s Muammar Gaddafi, Sudanese President Omar al-Bashir, and Russia’s Vladimir Putin in relation to Russia’s invasion of Ukraine. Putin is accused of the war crime of unlawfully deporting and transporting children from occupied territory in Ukraine and the ICC is also investigating genocide and crimes against humanity.

Russian President Vladimir Putin. (Photo: EPA-EFE/Igor Kovalenko)

Read more in Daily Maverick: War in Ukraine news hub

The Pre-Trial Chamber 1 ruled in February 2021 that the ICC had jurisdiction over the situation in Palestine, including the territories of Gaza, the West Bank and East Jerusalem. In March 2021, ICC prosecutor Fatou Bensouda announced the opening of an investigation into the situation in Palestine.

In November 2023, South Africa, together with five other states, submitted referrals of the situation in Palestine to the ICC.

In his statement on Monday, Khan said Netanyahu and Gallant bore criminal responsibility for war crimes and crimes against humanity, including using the starvation of civilians as a method of warfare, wilfully killing and causing great suffering, intentionally directing attacks against a civilian population, and extermination and/or murder.

Israeli Prime Minister Benjamin Netanyahu and defence minister Yoav Gallant during a press conference, Kirya military base in Tel Aviv, Israel. 28 October 2023. (Photo: Abir Sultan/Pool via Reuters/File Photo)

“My office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas (together with other Palestinian armed groups) running in parallel.

“We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to state policy.

“These crimes, in our assessment, continue to this day,” he said.

“The evidence that we have collected, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group, shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.”

“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 the body or health of the civilian population — are criminal,” he continued.

With regard to Sinwar, Al-Masri and Haniyeh, Khan said that he had “reasonable grounds to believe” that they “bear criminal responsibility” for war crimes and crimes against humanity, including, extermination, murder, taking hostages, rape and other acts of sexual violence and torture.

“It is the view of my office 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. We submit that these crimes could not have been committed without their actions,” Khan said.

Israeli Foreign Minister Israel Katz posted on X that the “outrageous decision” by the ICC prosecutor “is an unrestrained frontal assault on the victims of October 7th and our 128 hostages in Gaza”.

He said it was “a historical disgrace” that Khan “mentions in the same breath the Prime Minister and Defence Minister of Israel alongside the vile Nazi-like monsters of Hamas”.

Katz said he would speak with the foreign ministers of leading countries “to urge them to oppose the Prosecutor’s decision and declare that even if warrants are issued, they do not intend to enforce them against Israeli leaders”.

In a statement, Hamas also condemned the decision, accusing the prosecutor of trying to “equate the victim with the executioner”. It said it had the right to resist Israeli occupation, including “armed resistance”.

Timeline of the International Criminal Court arrest warrant applications for the Israel-Palestine War. (Source: Just Security)

Read more in Daily Maverick: Middle East crisis news hub

In the South African Presidency statement, President Cyril Ramaphosa said, “South Africa is committed to the international rule of law, universal respect for human rights and the settlement of all international disputes by negotiation and not war, and the self-determination of all peoples, including the Palestinians.

“We have also consistently held that all participants to the conflict must ensure that fighting and hostilities come to an immediate end, that all hostages must be released immediately, and that Israel immediately withdraws its military forces from Gaza.”

The International Justice Cluster lead at the Southern Africa Litigation Centre (Salc), Dr Atilla Kisla, said this was a “massive step in terms of accountability in relation to the conflict in Palestine”.

“It is a crucial moment for the court to show its impartiality and independence. For the court to demonstrate that, no matter what kind of position you hold in an organisation or a state, you will be held accountable and you cannot hide behind the guise of a self-proclaimed right to self-defence and act outside the law and commit crimes.”

Legal experts expressed different views about the extent of South Africa’s contribution to Khan’s decisions. One noted that there had been a previous referral by Palestine, which is why the ICC said it was already investigating the situation. But he noted that South Africa had specifically referred Israel’s response to the 7 October assault to the ICC and that must have contributed to the ICC’s focus.

Read in Daily Maverick: Pandor says Israel is ignoring the ICJ order to stop killings in Gaza

University of Cape Town international law professor Cathleen Powell said, “I have no doubt that the sheer amount of traffic around the issue may have speeded up the ICC’s handling of the complaints so far.”

She said South Africa had set the ball rolling with its focus on Gaza. But this was “not the magic bullet”, as all the other actions, such as the interventions in the International Court of Justice (ICJ) case by other countries in support of South Africa’s case, as well as the UN General Assembly and “all the American campuses that are going up in flames” had also made important contributions.

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Asked for her opinion on SA’s role in the ICC decision, the former head of the Salc and the Helen Suzman Foundation, Nicole Fritz said, “I don’t know that SA can claim credit, but one can be sure that the ICC is going to be the subject of unprecedented attack and attempts to undermine it.

“South Africa’s support, and that of other like-minded states who want to see justice for Palestinians and Israelis, for the independence and integrity of the ICC has never been more critical and SA should do all it can to protect the ICC from the threats and attacks that can be anticipated with certainty.”

‘Independence and impartiality’

In his announcement on Monday, Khan also addressed earlier threats against the ICC if it acted against Netanyahu and other top Israeli officials. He might have been referring to a letter sent to the ICC by 12 US Republican Party senators in April, in which they threatened sanctions and other actions against ICC officials if they proceeded with these charges.

“It is critical in this moment that my office and all parts of the court, including its independent judges, are permitted to conduct their work with full independence and impartiality,” Khan said. “I insist that all attempts to impede, intimidate or improperly influence the officials of this court must cease immediately.”

If not, he said his office would not hesitate to act under article 70 of the Rome Statute which governs the ICC. Article 70 allows the ICC to prosecute anyone who attempts to interfere with its work.

From ICC to ICJ

The ICC’s request for arrest warrants comes mere days after the ICJ heard South Africa’s request for additional provisional measures in its genocide case against Israel.

Read more in Daily Maverick: South Africa’s legal team asks ICJ to order halt to all Israeli military activity in Gaza Strip

While the ICJ is concerned with violations of the Genocide Convention, the ICC, in this context, is concerned with war crimes and crimes against humanity — whether by Hamas or Israeli leaders, Kisla explained.

While Kisla believed it was unlikely that the ICJ judges would refer to the ICC warrants in their ruling, the judges would “certainly take note of it, and again, it will shape the public opinion”.

Ottilia Anna Maunganidze, an international criminal law expert at the Institute for Security Studies, said: “There aren’t any charges for genocide [yet], so I would hesitate to link this with SA’s ICJ case. However, it is significant that these processes are underway at the same time.

“What I do foresee, though, is that the ICJ will have more to go on now than before — this is good for SA’s case, as much of what they have alleged is part of the charges levelled against Netanyahu and Gallant (though focused on war crimes and crimes against humanity).” DM