DAY 227 OF THE WAR: ICC Prosecutor Requests Warrants for Netanyahu and Gallant, Israel Expands Operation in Rafah

Tel Aviv Diary, May 20, 2024

Today's major news in Israel focused on the announcement that the Prosecutor of the International Criminal Court (ICC), Karim Khan, has decided to request arrest warrants for Prime Minister Netanyahu and Defense Minister Gallant. Khan alleges that they are guilty of the following:

• Starvation of civilians as a method of warfare is a war crime contrary to article 8(2)(b)(xxv) of the Statute;

• Willfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);

• Willful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);

• Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);

• Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;

• Persecution as a crime against humanity contrary to article 7(1)(h);

• Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

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.”

Tel Aviv Diary readers are aware that I believe Israel has made mistakes during the war, and there are many aspects I wish we had handled differently. However, the acts of the ICC are fundamentally flawed on many levels. First and most importantly, the central accusation centers on Israel deliberately starving the people of Gaza as a wartime strategy. I hear again and again about the starving people and children in Gaza. Yet, there is no evidence that anyone is starving in Gaza. Just the opposite; as I have written several times, there is more than enough food entering Gaza. Moreover, despite the fact there is no proof of starvation,  it is often mentioned as if it were an established fact. Furthermore, while an argument can be made that our military could exercise greater caution to avoid civilian casualties when firing at Hamas terrorists, the accusation that we are intentionally targeting civilians is baseless.

Beyond the issues surrounding the actual ICC charges, there is also the question of jurisdiction. Israel is not a member of the ICC. Nevertheless, the ICC claims jurisdiction because the events under review occurred in Palestine, which has been accepted as a member even though it is not recognized as a sovereign nation. However, the Palestinian government is in the West Bank and not in Gaza. More despicable, the ICC made the announcement regarding Netanyahu and Gallant at the same time as they delineated their criminal charges against Hamas, creating a false equivalence. It should be noted that members of the ICC were scheduled to visit Israel today to receive more information on what Israel is doing to address the allegations cited in their lawsuit but instead decided to request arrest warrants instead.

President Biden released the following statement regarding the ICC’s issuance of arrest warrants:

The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas.  We will always stand with Israel against threats to its security.

Secretary of State Blinken responded as follows:

We reject the prosecutor’s equivalence of Israel with Hamas. It is shameful. Hamas is a brutal terrorist organization that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans. The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here, amid the prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.

If the ICC prosecutor gets the judges to sign off on the arrest warrants, which is expected, all member nations of the ICC (100+ in total) are obligated to arrest anyone who objects to such warrants. To date, only 20 people in the world have been charged by the ICC.

This will be the first time that arrest warrants will be issued against the leaders of a democracy. Israel is undertaking a diplomatic blitz to convince countries not to honor the warrant. The US is not a member of the ICC.

ICC Prosecutor Khan also requested arrest warrants against Hamas head Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, more commonly known as Mohammed Deif, Commander-in-Chief of the military wing of Hamas, (known also as the Al-Qassam Brigades), and Ismail Haniyeh, Head of Hamas’s Political Bureau. Sinwar, Deif, and Haniyeh are being charged with:

• Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;

• Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);

• Taking hostages as a war crime, contrary to article 8(2)(c)(iii);

• Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;

• Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;

• Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;

• Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and

• Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

Ismail Haniyeh is the only member of Hamas who currently moves around in the world; the others are still being hunted in the tunnels of Gaza.

GAZA

IDF operations continue in Gaza. The Army provided more details about the missions to retrieve hostage bodies. These bodies were found in a tunnel cavity inside the Jabaliya refugee camp. Those guarding the tunnel had left to fight the IDF, first placing explosive devices in the tunnel entrance. After the guards were killed outside the tunnel, explosive experts entered and neutralized the bombs, allowing for the safe retrieval of the bodies.