ICC judges approved the arrest of Israeli military and political leaders

ICC judges approve the arrest of Israeli military and political leaders indicting them of war crimes and crimes against humanity in Palestine. The Court found the following:

The Chamber issued warrants of arrest for two individuals, Mr Benjamin Netanyahu and Mr Yoav Gallant, for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024, the day the Prosecution filed the applications for warrants of arrest.

The arrest warrants are classified as ‘secret’, in order to protect witnesses and to safeguard the conduct of the investigations. However, the Chamber decided to release the information below since conduct similar to that addressed in the warrant of arrest appears to be ongoing. Moreover, the Chamber considers it to be in the interest of victims and their families that they are made aware of the warrants’ existence.

At the outset, the Chamber considered that the alleged conduct of Mr Netanyahu and Mr Gallant falls within the jurisdiction of the Court. The Chamber recalled that, in a previous composition, it already decided that the Court’s jurisdiction in the situation extended to Gaza and the West Bank, including East Jerusalem. Furthermore, the Chamber declined to use its discretionary proprio motu powers to determine the admissibility of the two cases at this stage. This is without prejudice to any determination as to the jurisdiction and admissibility of the cases at a later stage.

With regard to the crimes, the Chamber found reasonable grounds to believe that Mr Netanyahu, born on 21 October 1949, Prime Minister of Israel at the time of the relevant conduct, and Mr Gallant, born on 8 November 1958, Minister of Defence of Israel at the time of the alleged conduct, each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.

The Chamber also found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.

Alleged crimes

The Chamber found reasonable grounds to believe that during the relevant time, international humanitarian law related to international armed conflict between Israel and Palestine applied. This is because they are two High Contracting Parties to the 1949 Geneva Conventions and because Israel occupies at least parts of Palestine. The Chamber also found that the law related to non-international armed conflict applied to the fighting between Israel and Hamas. The Chamber found that the alleged conduct of Mr Netanyahu and Mr Gallant concerned the activities of Israeli government bodies and the armed forces against the civilian population in Palestine, more specifically civilians in Gaza. It therefore concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory. For these reasons, with regards to war crimes, the Chamber found it appropriate to issue the arrest warrants pursuant to the law of international armed conflict. The Chamber also found that the alleged crimes against humanity were part of a widespread and systematic attack against the civilian population of Gaza.

The Chamber considered that there are reasonable grounds to believe that both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024. This finding is based on the role of Mr Netanyahu and Mr Gallant in impeding humanitarian aid in violation of international humanitarian law and their failure to facilitate relief by all means at its disposal. The Chamber found that their conduct led to the disruption of the ability of humanitarian organisations to provide food and other essential goods to the population in need in Gaza. The aforementioned restrictions together with cutting off electricity and reducing fuel supply also had a severe impact on the availability of water in Gaza and the ability of hospitals to provide medical care.

The Chamber also noted that decisions allowing or increasing humanitarian assistance into Gaza were often conditional. They were not made to fulfil Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied with goods in need. In fact, they were a response to the pressure of the international community or requests by the United States of America. In any event, the increases in humanitarian assistance were not sufficient to improve the population’s access to essential goods.

Furthermore, the Chamber found reasonable grounds to believe that no clear military need or other justification under international humanitarian law could be identified for the restrictions placed on access for humanitarian relief operations. Despite warnings and appeals made by, inter alia, the UN Security Council, UN Secretary General, States, and governmental and civil society organisations about the humanitarian situation in Gaza, only minimal humanitarian assistance was authorised. In this regard, the Chamber considered the prolonged period of deprivation and Mr Netanyahu’s statement connecting the halt in the essential goods and humanitarian aid with the goals of war.

The Chamber therefore found reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare.

The Chamber found that there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration. On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met. However, the Chamber did find that there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.

In addition, by intentionally limiting or preventing medical supplies and medicine from getting into Gaza, in particular anaesthetics and anaesthesia machines, the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment. Doctors were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics, and/or were forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering. This amounts to the crime against humanity of other inhumane acts.

The Chamber also found reasonable grounds to believe that the abovementioned conduct deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and that the population was targeted based on political and/or national grounds. It therefore found that the crime against humanity of persecution was committed.

Finally, the Chamber assessed that there are reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza. In this regard, the Chamber found that the material provided by the Prosecution only allowed it to make findings on two incidents that qualified as attacks that were intentionally directed against civilians. Reasonable grounds to believe exist that Mr Netanyahu and Mr Gallant, despite having measures available to them to prevent or repress the commission of crimes or ensure the submittal of the matter to the competent authorities, failed to do so.

 

The Court's decision is a response to a submission by the ICC Prosecutor, Karim A.A. Khan, who issued the arrest warrants in the situation in the State of Palestine in May 2024.

Reactions by political leaders,NGOs, and experts from around the world indicates the significance of this event, since this is the first time the ICC indicts a Western leader or an ally of the West accused of one of the crimes that falls under its jurisdiction.

The Netherlands was the first country to express its support and readiness to implement the decision, and while Belgium called on European countries to abide by the decision, France's position was somewhat ambiguous when it refused to clarify its readiness to arrest Netanyahu if he reached its territory.

At the same time, the Israel Hayom newspaper quoted Israeli Foreign Minister Gideon Sa'ar as saying that Israel hopes that friendly countries will announce that they do not intend to comply with the orders of the International Criminal Court.

The following are the most prominent international positions in this regard:

The Netherlands:

The Netherlands was the first country to express its position, as Reuters quoted Dutch Foreign Minister Casper Veldkamp as saying that his country is ready to implement the court's order against Netanyahu and Galant.

Belgium:

Petra De Sutter, Deputy Prime Minister of Belgium:

Belgium supports the arrest warrant issued by the International Criminal Court for Netanyahu and Galant.

The International Criminal Court issued arrest warrants for Netanyahu, Galant and Al-Daif and we must comply.

The European Union must comply with the arrest warrants for Netanyahu and Galant.

Europe must comply with the decision, impose economic sanctions, suspend the association agreement with Israel, and support the arrest warrants.

France:

The French position was ambiguous, as a spokesman for the French Foreign Ministry said that Paris's response to the court's order would be in line with the principles of the court, adding that the court is a guarantor of international stability and must be guaranteed to operate independently.

However, the spokesman declined to comment on whether France would arrest Netanyahu if it reached it, saying, "It is a legally complex point, so I will not comment on it today."

Ireland:

Michael Martin, Deputy Prime Minister and Minister of Foreign Affairs of Ireland:

We call on all states to respect the independence and impartiality of the International Criminal Court.

We strongly support the International Criminal Court and call for respect for its independence and for no attempt to undermine it.

UK:

British PM’s spokesman: Britain respects the independence of the ICC.

Sweden:

Swedish Foreign Minister Maria Malmer Stenergård:

Stockholm and the EU support the important work of the court and protect its independence and integrity.

Swedish law enforcement authorities decide whether to arrest people for whom the court has issued arrest warrants on Swedish territory.

Norway

Norwegian Foreign Minister Espen Barth Eide:

It is important that the court carries out its mandate in a judicious manner.

I trust that the court will proceed with the case based on the highest standards of fair trial.

Italy:

Italian Foreign Minister Antonio Tajani:

We will consider with our allies how to interpret the decision and take joint action.

We support the court. The court must play a legal role, not a political one.

Italian Defence Minister Guido Crosetto:

The court is wrong, but we will have to arrest Israeli Prime Minister Benjamin Netanyahu if he visits us.

EU:

EU High Representative for Foreign Affairs and Security Policy Josep Borrell:

The ICC warrant for the arrest of Netanyahu and Galant is not political and the court’s decision must be respected and implemented.

The ICC’s decision is binding and must be respected and implemented by all states and partners in the court.

Canada

Canadian Prime Minister Justin Trudeau:

It is really important that everyone abides by international law.

Canada will abide by the rulings of international courts.

UN:

Special Rapporteur on human rights in the occupied Palestinian territories Francesca Albanese:

States parties to the Rome Statute must respect and implement the court’s decisions.

We respect the independence of the ICC and support its work to achieve accountability.

States, especially the United States and the European Union, must confront the extent of their violations of international law.

Human Rights Organizations:

Human Rights Watch:

ICC warrants debunk the notion that individuals are above the law.

ICC warrants are important given the attempts to obstruct the course of justice in the ICC.