(The Hague) – The International Criminal Court (ICC) judges’ decision to issue arrest warrants against senior Israeli leaders and a Hamas official in the face of strong opposition – including from the United States and Israel – deserves international support, Human Rights Watch said today.
On November 21, 2024, the ICC issued warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant of Israel, as well as Mohammed Diab Ibrahim al-Masri (“Mohammed Deif”), commander-in-chief of Hamas’ military wing, the Qassam Brigades.
“The ICC arrest warrants against senior Israeli leaders and a Hamas official break through the perception that certain individuals are beyond the reach of the law,” said Balkees Jarrah, associate international justice director at Human Rights Watch. “This is all the more important given the brazen attempts to obstruct the course of justice at the court. Whether the ICC can effectively deliver on its mandate will depend on governments’ willingness to support justice no matter where abuses are committed and by whom.”
The court’s judges concluded that there are reasonable grounds to believe that Netanyahu and Gallant are responsible for war crimes and crimes against humanity in the Gaza Strip from at least October 8, 2023, including the starvation of civilians, intentionally directing attacks against a civilian population, murder, and persecution. The judges determined that there were reasonable grounds to believe that Deif is responsible for war crimes and crimes against humanity in Israel and Gaza since at least October 7, 2023, including extermination, murder, and hostage-taking.
The ICC prosecutor, Karim Khan, had announced on May 20 that he asked the court’s judges to issue arrest warrants against Netanyahu, Gallant, Deif, the then-head of Hamas in Gaza Yahya Sinwar, and the former Hamas political bureau head, Ismail Haniyeh. Khan’s office withdrew the application against Haniyeh after he was killed on July 31 while visiting Tehran to attend Iran’s presidential inauguration. The judges also confirmed the prosecutor’s withdrawal of the application against Sinwar following the confirmation of his death.
The ICC judges’ consideration of Khan’s applications was deferred when the United Kingdom sought permission on June 10 to file an amicus curiae (“friend of the court”) brief to argue that the Oslo Accords, the 1993 agreement between Israel and the Palestine Liberation Organization, barred the court’s jurisdiction over Israeli nationals. The initiative appeared aimed at delaying a decision given that a separate panel of ICC judges previously confirmed the court’s mandate, Human Rights Watch said.
The judges granted the United Kingdom’s request and subsequently allowed 63 others – including states, intergovernmental organizations, academics, United Nations officials, and civil society organizations – to also file amicus briefs on the issue. Palestine participated in the process, but Israel did not make a submission at that time.
The United Kingdom abandoned its initiative following a change in government in July, but the process it triggered ultimately delayed the judges’ decision on the warrants. Human Rights Watch, Amnesty International, and REDRESS had urged the new British Foreign Secretary David Lammy in July to drop the former UK government’s plan to file an amicus brief.
In August, the groups also filed an amicus brief together with the Open Society Justice Initiative and the European Center for Constitutional and Human Rights, making the case that the Oslo Accords are irrelevant to the decision and that the accords do not prevent the court from exercising its jurisdiction.
On August 23, Khan’s office filed its response to all the amicus briefs and asked the court’s judges to decide on its application for arrest warrants with the “utmost urgency.” Israel filed a brief on September 23 challenging the ICC’s jurisdiction and asked the court’s judges to dismiss the arrest warrant applications against Netanyahu and Gallant. Khan’s office responded on September 27 calling on the ICC judges to reject Israel’s challenge. On November 21, the judges considered such challenge “premature” and rejected it.
The earlier ICC panel of judges concluded in February 2021 that the ICC has jurisdiction over the situation in Palestine following a January 2020 request by the former prosecutor, Fatou Bensouda, seeking their guidance on the issue. Bensouda’s office had concluded a nearly five-year-long preliminary inquiry into the Palestine situation in December 2019 and determined that all the necessary criteria to proceed with a formal investigation had been met. Her office opened an investigation in March 2021.
Palestine became an ICC member in 2015 and gave the court a mandate back to June 13, 2014, to address serious crimes committed on its territory or by its nationals since that date, including the 2014 hostilities in Gaza. In May 2018, Palestine formally asked the ICC prosecutor to investigate and affirmed its commitment to cooperate with the court. Israel signed but has not ratified the ICC treaty, and in 2002, it announced that it did not intend to become a court member.
In November 2023, Bangladesh, Bolivia, Comoros, Djibouti, and South Africa – all ICC member countries – referred the situation in Palestine to the court’s prosecutor, referencing numerous war crimes, crimes against humanity, and the crime of genocide.
The same month, a number of Palestinian nongovernmental organizations submitted a brief urging the ICC prosecutor to consider including the crimes of apartheid and genocide as part of his ongoing investigation. Mexico and Chile also referred the Palestine situation to the court’s prosecutor in January 2024.
The decision to issue the warrants comes as the court faces unprecedented pressure, Human Rights Watch said. In April, amid speculation that the warrants were imminent, 12 US senators threatened to sanction Khan if he pursued cases against top Israeli officials. Netanyahu also called on governments to prevent the court from issuing warrants. Khan’s office denounced the threats, noting that the ICC can also prosecute individuals for obstructing justice.
At the end of May, the Guardian, +972 Magazine, and Local Call reported that Israeli officials have been conducting surveillance on senior ICC officials for nine years as part of a secret operation to thwart the court’s Palestine investigation. On June 4, the US House of Representatives passed a bill aimed at imposing sanctions against the ICC, its officials, and those supporting investigations at the court involving US citizens or allies.
On June 14, 94 ICC member countries expressed their “unwavering support” for the court in the face of these threats. The joint statement followed similar expressions of support by several ICC member countries – including UN Security Council members – the high representative of the European Union, UN experts, and nongovernmental groups. ICC member countries should again reaffirm their commitment to defend the court, its officials, and those cooperating with it from any political interference and pressure, Human Rights Watch said.
On November 17, the incoming Senate majority leader John Thune called for immediate action on the US House of Representatives legislation and vowed to pursue sanctions as a “top priority in the next Congress.”
In addition to strong political messaging in defense of justice, ICC members should also take concrete steps to limit or, where possible, nullify the effects of potential sanctions against the court. This should include the adoption or implementation of national or regional blocking statutes, such as the EU Blocking Statute.
Because the ICC has no police force of its own, it must rely on states to assist with arrests. All ICC member countries are obligated to cooperate in the arrest and surrender of people wanted by the court.
Lack of accountability for crimes committed in the context of hostilities between Israel and Palestinian armed groups has fueled abuses across the Middle East, including in Lebanon and Yemen. Lebanon should urgently give the ICC jurisdiction to enable the court’s prosecutor to investigate grave international crimes committed there, Human Rights Watch said.
“These warrants should finally push the international community to address atrocities and secure justice for all victims in Palestine and Israel,” Jarrah said. “After over a half-century of rampant impunity, those responsible for some of the gravest crimes should pay the price so that victims and survivors can obtain a measure of justice that has long eluded them.”
For details about HRW’s documentation and other recent legal efforts to achieve justice, please see below.
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Abuses Since October 7, 2023
On October 7, 2023, Hamas-led Palestinian armed groups, in what amount to war crimes and crimes against humanity, attacked southern Israel, killing over 800 civilians and taking 251 people hostage, and these groups have continued to launch indiscriminate rockets at population centers in Israel.
Israeli forces have unlawfully attacked residential buildings, medical facilities, and aid workers, committing apparent war crimes, and have restricted medical evacuations, blocked humanitarian aid, and used starvation as a weapon of war in the Gaza Strip, amounting to the war crime of collective punishment. Israeli authorities have also caused the massive, deliberate forced displacement of Palestinian civilians in Gaza since October 2023 and are responsible for war crimes and crimes against humanity. At least 44,056 people have been killed in Gaza since October 2023, according to the Gaza Health Ministry. Israeli authorities have detained incommunicado and mistreated thousands of Palestinians, including Palestinian healthcare workers from Gaza, with persistent reports of torture.
In the occupied West Bank, including East Jerusalem, Israeli forces continue to use excessive force, including airstrikes, with at least 736 Palestinians killed since October 7. Attacks by settlers continue to rise and have displaced entire Palestinian communities, destroying homes and schools, with the apparent backing of Israeli soldiers and higher Israeli authorities, and effectively confiscating Palestinian lands.
These abuses, whether in Gaza or the West Bank, occur amid Israel’s ongoing repression of Palestinians, undertaken as part of a policy to maintain the domination of Jewish Israelis over Palestinians, amounting to the crimes against humanity of apartheid and persecution.
Impunity for these and other alleged serious crimes remains the norm. This has long highlighted the importance of an ICC investigation to fill the accountability gap, Human Rights Watch said.
Other International Accountability Responses
The UN Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel has noted there was “clear evidence” of war crimes in Israel and Gaza and that it would share information with relevant judicial authorities, especially the ICC. The commission concluded in an October report that Israel has carried out a concerted policy to destroy Gaza’s healthcare system as part of a broader assault on Gaza, committing war crimes and the crime against humanity of extermination. Governments should press Israeli and Palestinian authorities to cooperate with the ICC and the commission.
The ICC’s Palestine investigation is distinct from proceedings at the International Court of Justice (ICJ), which adjudicates disputes between states and issues advisory opinions on international law. The ICJ is currently considering a case brought by South Africa alleging that Israel is violating the Genocide Convention of 1948.
While a ruling on the merits of that claim will most likely take years, the ICJ has ordered Israel three times to take certain measures, including enabling the provision of basic services and humanitarian assistance into Gaza. Human Rights Watch research demonstrates that Israel is continuing to flout the court’s orders, with devastating consequences for Palestinians in Gaza.
In July, the ICJ also issued an advisory opinion with multiple findings on the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory, including that Israel’s continued presence in the Occupied Palestinian Territory is unlawful. The opinion has significant consequences for human rights protections in Palestine under Israel’s 57-year occupation. The opinion stems from a December 2022 request by the UN General Assembly to consider the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory.
The ICJ’s findings are legally and morally persuasive and set out obligations on all states and on the UN itself. Two of its important conclusions are with respect to apartheid and reparations. Although the main opinion did not directly address international crimes, the court’s factual and legal findings, and some of the separate statements by its judges, should be considered by the ICC prosecutor in the investigation of crimes including apartheid, persecution, forced displacement, and crimes concerning unlawful settlements in occupied territory.
