ICC Cases Against Israel and Hamas: A Preliminary Assessment

The Prosecutor of the International Criminal Court (ICC), Karim A.A. Khan, announced on May 20 that his office had applied for arrest warrants against both Israeli and Hamas officials for crimes on and since October 7, 2023. The announcement is surprising for a number of reasons, not least of which is the prosecutor’s publicizing his intention on arrest warrants before they have actually been issued. This article examines the charges labeled against the officials, the Prosecutor’s motivations in making the requests, and the legal and political issues affecting developments in these cases.

The Charges and the Perpetrators

The ICC Prosecutor is seeking arrest warrants for Hamas officials Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh, and for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. The charges are similar, but the cases are likely to be different based on the evidence—at least that which is publicly available. The charges against Sinwar, the head of Hamas in the Gaza Strip, Mohammed Al-Masri (also known as Mohammed Deif), commander-in-chief of the military wing Al-Qassam Brigades, and Ismail Haniyeh, head of Hamas’s political bureau, include murder, hostage-taking, sexual violence, and torture as either war crimes or crimes against humanity. Those against Netanyahu and Gallant focus on their use of starvation as a method of war, willful killing, direct targeting of civilians, extermination and murder, all as war crimes and crimes against humanity.

The charges against the two Israeli officials are important corollaries to the two genocide cases pending at the International Court of Justice (ICJ), in that if many of the underlying acts are proven against Netanyahu and Gallant as individuals, they will be critical elements in proving genocide against Israel as a state as well. The evidence of Netanyahu and Gallant’s responsibility for inciting, directing, and prosecuting the war on Gaza and the related crimes charged by the ICC Prosecutor have already been developed in the ICJ genocide cases. Thus, much of the Prosecutor’s investigative and factual work has already been done—at least as a preliminary matter—before his office announced the move.

The evidence of Netanyahu and Gallant’s responsibility for inciting, directing, and prosecuting the war on Gaza and the related crimes charged by the ICC Prosecutor have already been developed in the ICJ genocide cases.

On the other hand, the Prosecutor is likely to face greater legal difficulties in proving the charges against the Hamas leaders. For one, Ismail Haniyeh, who is based in Qatar, seemed shocked by the attacks by Hamas and Islamic Jihad militants on October 7; so they may have been conducted without consultation with him, or even advance notice. Therefore, responsibility for the conduct of the attacks on October 7 may be difficult to attribute to the political leaders outside of Gaza. Second, the evidence is likely to reflect what has now become publicly available, that much of the death and destruction on October 7 was caused by the Israeli Defense Forces Hellfire missile attacks on Israeli towns and a music festival where many were killed. Third, charges of widespread rape and other sexual assault have been challenged as lacking evidence by both western and Israeli investigative reporting. Intent will also have to be proved for the Israeli figures. They have left a paper trail that may ease the Prosecutor’s work.

Fourth, proving Hamas leaders’ intent to commit atrocities when they sent their forces into Israel may be challenging. Fifth, Hamas officials can also highlight the fact that the attack into Israel was in significant measure aimed at military objectives. Hamas held military outposts in southern Israel for the better part of the day on October 7. And many of those killed were IDF military personnel. The number of civilian deaths Khan can pin on Hamas could turn out to be modest.

Hamas has already reacted by saying that its people are victims, not criminals. In much of the world, especially in the Global South where Palestinian resistance to occupation and self-determination is a rallying cry, that depiction is likely to resonate.

The Prosecutor’s Motives and Impact of the Warrant Requests

Usually, the ICC does not announce warrants until they have been issued, as they must be, by a pre-trial chamber, following a process of evidentiary review and deliberation that can take weeks or months. The premature announcement could indicate that the Prosecutor’s office is hoping to impact the ongoing war on Gaza, and to put additional pressure on the parties to reach a ceasefire. Whether the warrant requests will have that effect remains to be seen; however, the announcement immediately garnered the ire of Israel and its chief allies, the United States and the United Kingdom. Netanyahu reacted to the Prosecutor’s move with outrage, while other Israeli officials expressed similar sentiments, rejecting parallels between Israeli and Hamas officials.

US President Joe Biden expressed anger as well, saying, “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.” The United States—which, like Israel, is not a party to the Rome Statute that created the court—has also claimed the ICC has no jurisdiction over Israel or its actions in Gaza. This is a curious position for the United States to take, as it fully supported the ICC’s arrest warrants against Russian President Vladimir Putin and other principals for war crimes in Ukraine. The United States has, meanwhile, threatened sanctions against the ICC Prosecutor, his staff and the Court itself, in a reprise of President Donald Trump’s Executive Order that froze the accounts and assets of Khan’s predecessor Fatou Bensouda, and denied her and her staff visas to the United States.

There is likely to be sufficient evidence to establish at least the crimes of starvation, collective punishment, and siege as war crimes and crimes against humanity.

For Khan, the pursuit of Israeli officials comes after years of slow-walking an investigation of crimes that was requested by Palestine, starting in 2019. Israeli officials can readily be prosecuted for their settlements in the occupied West Bank. The ICC Statute makes it a war crime to transfer an occupying power’s people for settlement on territory under occupation. Perhaps Khan will add this as a charge, but to date he has not done so. Khan could also prosecute Israeli officials for failing to offer repatriation to the families of Arabs displaced from Palestine in 1948. Refusal to allow the return of population to territories from which they were displaced is a crime against humanity. So, far from Khan’s current action purportedly reflecting bias against Israel, it is only a small part of what he could, and should, actually be doing against it.

Given the enormous amount of information gathered by United Nations organs and international agencies operating in Gaza, there is likely to be sufficient evidence to establish at least the crimes of starvation, collective punishment, and siege as war crimes and crimes against humanity against Netanyahu and Gallant. More critical is the issue of whether there is any likelihood they will be arrested if convicted. At minimum, the effect of the issuance of warrants will make it difficult for those named to travel in much of the world, as many, if not most, countries will execute the warrants if the suspects are found on their territory.

What to Expect

Pressure on the ICC from the United States and the United Kingdom is likely to increase dramatically if the additional US measures come into effect. It is unlikely that these will halt the work of the Court, but they can hamper the Prosecutor’s investigations in significant ways. For one, Israel can block the collection of evidence from within Gaza, in defiance of the ICJ’s provisional order not to do so. It is also possible that Israel will eliminate key informants and witnesses and bulldoze and raze evidence (as has already happened in Gaza). In addition, Israel’s recent closing of press offices, like that of Al Jazeera, will make eyewitness testimony collection much more difficult.

Under Trump, only executive action was taken against the ICC. Now Congress is considering legislation to require the president to sanction the ICC, with both Republicans and Democrats leading the charge. Chris Coons, a key Democratic senator from Delaware, claims that the ICC is acting out of turn because it is supposed to be a court of last resort and Israel has a judiciary capable of investigating whether its officials have acted wrongfully. Coons’ claim reflects a level of both ignorance and hysteria on the issue in Congress. The ICC is required to refrain from moving forward on a case only if the specific suspect is being investigated with a view to possible prosecution. It is irrelevant whether Israel has a functioning judiciary. The ICC would abstain only if Netanyahu or Gallant is being seriously investigated by prosecuting officials in Israel for starving and killing Gazans. Until that occurs, there is no legal impediment to prosecution.

Khan’s action is a serious threat to Biden’s espousal of his narrative that the United States promotes an international order based on rule of law.

Prosecutor Khan’s action is a serious threat to Biden’s espousal of his narrative that the United States promotes an international order based on rule of law. If Biden comes down too heavily on the court, he will be seen as the impediment to implementing international law. The Israel that he robustly defends has refused to become a member of the ICC, whereas Palestine did so in 2015. Palestine thereby subjects its nationals, including those in Gaza, to possible prosecution. Israel has not been willing to do the same.

As for practical impact, Netanyahu and Gallant are not likely to surrender themselves or be surrendered by Israel, even if the warrants are issued. Their travel would be curtailed. Friendly governments may not arrest them but might ask them to stay at home. For Sinwar and Al-Masri, the calculation is different. Turning themselves in to the ICC might be a way to avoid being killed by the IDF, assuming they could find a way out of Gaza safely. Since Israel is wont to kill large numbers of civilians when it goes after top Hamas officials, a surrender might avoid killing other Palestinians.

For Israel, the charges against its officials threaten to cast it deeper into the role of international pariah that, rather than generate sympathy for the crimes of October 7, has instead had the effect of massively generating good will in favor of the people of Palestine. For Hamas, it has been so thoroughly demonized that the charges are not likely to move the dial significantly in its international standing. It has reacted to the charges against its officials by saying it is the victim, a view that might gain traction, particularly in the Global South. The December 2022 advisory case in the International Court of Justice produced devastating testimony on Israel’s misdeeds over the years in Gaza, so groundwork has been laid for Hamas to justify whatever it may have done as a reaction, in circumstances in which it had few options. The same is likely to happen following the ICJ’s May 24, 2024 decision on Israeli behavior during the Gaza war. In the public arena, Israel is likely to lose more than Hamas. Germany, France, and others have already announced that they support the ICC if it issues its warrants. Furthermore, the logjam in Europe against recognizing Palestine as a state was broken two days after Khan’s announcement by Ireland, Spain, and Norway that they will recognize Palestinian statehood. More European states may follow, as those withholding recognition will increasingly be seen as American puppets.

Regardless of the ultimate outcome, it is clear that this move by the ICC is a watershed moment in the effort to end Israeli impunity for its brutality against Palestinians in Gaza. Israel can no longer claim to be a democracy; the warrants of arrests for its highest officials puts it squarely along with the worst dictators who have been prosecuted for the gravest of universal crimes. International law may very well have been given another opportunity to assert its relevance and centrality to international peace and stability.

The views expressed in this publication are the authors’ own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors. 

Featured image: Shutterstock/Roman Yanushevsky