October 7 marked the initiation of the Hamas-led attack on southern Israel and the onset of Israel's relentless war on Gaza. While the initial Hamas attack resulted in the loss of more than 1,100 lives and the capture of 253 individuals,[i] Israel's subsequent offensive has seen a staggering toll, with over 35,000 Palestinian fatalities, including over 15,000 children, recorded within the first seven months alone. [ii]

The relentless Israeli bombardment has forced nearly the entire population of the Gaza Strip, around 2.3 million people, into displacement, with 62% of all homes suffering destruction or severe damage.[iii] This widespread devastation has triggered a profound humanitarian crisis, with an estimated 1.7 million individuals, half of whom are children, internally displaced and struggling for shelter in overcrowded and vulnerable conditions, particularly in areas like Rafah.[iv] The dire situation has prompted the head of the UN's World Food Program to issue a stark warning of an impending famine in the northern regions of Gaza.[v]

In response to these developments, the International Criminal Court (ICC) is pursuing arrest warrants for key figures involved in the war. ICC Chief Prosecutor Karim Khan disclosed on May 20, 2024 that arrest warrants are being sought for Israeli Prime Minister Benjamin Netanyahu, Israel's Defense Minister Yoav Gallant, as well as Hamas leader Yahya Sinwar and two other high-ranking Hamas leaders, Mohammed Diab Ibrahim al-Masri (also known as Mohammed Deif) and Ismail Haniyeh.[vi]

This article aims to evaluate the implications of these warrants on the conflict's dynamics by examining the establishment and jurisdiction of the ICC, the alleged crimes committed by both parties, and the international response to such legal developments. 

Court’s Establishment

The establishment of the ICC under the governance of the Rome Statute marks a breakthrough in the pursuit of accountability for international crimes.[vii] It aims to end impunity for the most serious crimes, operating independently of the United Nations system, from its headquarters in The Hague, Netherlands. While primarily funded by States Parties to the Rome Statute, the ICC also receives voluntary contributions. The need for a permanent court arose from consensus on defining genocide, crimes against humanity, and war crimes. A historic milestone was reached on July 17, 1998, when 120 states adopted the Rome Statute, providing the legal basis for the ICC's establishment. The Rome Statute later entered into force on July 1, 2002, following ratification by 60 countries.[viii]

• The Office of the Prosecutor election: Aligned with this pursuit of accountability, the Office of the Prosecutor (OTP), is elected by the Assembly of States Parties. Its mandate includes receiving and analyzing referrals and communications to assess whether there is a reasonable basis for any investigation. It conducts investigations into genocide, crimes against humanity, and war crimes, prosecuting those deemed responsible. The OTP operates independently within the Court.[ix]Mr. Karim A. A. Khan KC was elected as Prosecutor of ICC during the nineteenth session of the Assembly of States Parties to the Rome Statute in New York on February 12, 2021, and was sworn in on June 16, 2021.[x]

Court’s Pillars 

The ICC holds jurisdiction over the gravest crimes concerning the international community: genocide, crimes against humanity, war crimes, and, since July 17, 2018, the crime of aggression, subject to specific conditions and procedures.[xi]These crimes are precisely defined in the Rome Statute. The Court's jurisdiction extends to crimes committed within the territory of a State Party or by its nationals. However, this requirement is waived if a situation is referred to the Prosecutor by the United Nations Security Council or if a State accepts the Court's jurisdiction through a declaration.

Importantly, the principle of complementarity underpins the ICC's role, since “The Court is intended to complement, not to replace, national criminal justice systems. It can prosecute cases only if national justice systems do not carry out proceedings or when they claim to do so but in reality, are unwilling or unable to carry out such proceedings genuinely.”[xii]

Furthermore, the Prosecutor can initiate investigations or prosecutions in three ways: through referrals from States Parties, requests from the United Nations Security Council, or proprio motu investigations (on its own initiative) based on reliable information. In the latter case, the Prosecutor must obtain prior authorization from a Pre-Trial Chamber comprised of three independent judges.[xiii]

It's crucial to emphasize that holding an official position as a head of state, government member, parliamentarian, elected representative, or public official does not grant immunity from prosecution or criminal responsibility.[xiv] Additionally, superiors or military commanders can be held accountable for crimes committed by individuals under their effective command or control. 

Court’s Panel in the Case of Palestine 

Initiating the investigation into the Situation in the State of Palestine, the Prosecutor of the Court requested the convening of a Panel of legal experts in International Law. Their purpose was to examine the international crimes committed either within Palestinian territory or by Palestinian nationals.[xv] Specifically, the Panel was tasked with advising the Prosecutor on whether the applications for arrest warrants met the standard provided in article 58 of the Rome Statute.  Their primary focus was to determine whether there were "reasonable grounds to believe" that the individuals named in the warrants had committed crimes falling under the jurisdiction of the Court.[xvi]

Court’s Jurisdiction 

While there have been some claims that the International Criminal Court lacks jurisdiction over Israeli leaders due to Israel's non-membership to the Court, according to the Panel as well as the Prosecutor, the ICC indeed holds jurisdiction over crimes occurring within the territory of Palestine, including Gaza, as stipulated in Article 12(2)(a) of the ICC Statute.[xvii] This stance is bolstered by the ICC's Pre-Trial Chamber's ruling, affirming the Court's jurisdiction over Palestine. On January 1, 2015, The State of Palestine formally submitted a declaration under Article 12(3) of the Rome Statute, acknowledging ICC jurisdiction over alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014[xviii]. Consequently, the Court is empowered to adjudicate acts occurring in Palestine or perpetrated by Palestinian nationals since that time. Moreover, experts assert that similar to the support extended by the United States and other nations for the ICC's arrest warrant against Russian President Vladimir Putin—a leader of a non-ICC member state—they should also endorse any arrest warrants against Israeli leaders, despite their non-membership status.[xix]

The Laws and the Charges 

The arrest warrants filed accuse both Hamas and Israeli suspects of war crimes and crimes against humanity. 

Pertaining, war crimes, as defined by Article 8 (a) and (b) of the Rome Statute, such crimes necessitate a nexus/ connection to an armed conflict, which in some cases must be international. This nexus requirement distinguishes war crimes from purely domestic crimes and prevents isolated incidents from being classified as war crimes.[xx]

Consequently, the assessment of the situation in Gaza and Israel was deemed necessary to determine the existence and nature of an armed conflict. The Panel concurs with the Prosecutor's determination that the conflicts in both Israel and Gaza constitute both international and non-international armed conflicts simultaneously.[xxi]

The Panel identifies Hamas as a well-organized non-state armed group, and the level of hostilities between Hamas and Israel has reached the threshold of a non-international armed conflict. According to the Panel's evaluation, the non-international armed conflict between Israel and Hamas commenced no later than October 7, 2023, coinciding with Hamas's initiation of Operation al-Aqsa Flood and Israel's subsequent Operation Iron Swords in response.[xxii]

Moreover, the Panel's findings indicate an international armed conflict between Israel and Palestine for three main reasons:

• Firstly, Palestine is recognized as a State according to international law, which supports the issuance of arrest warrants. Additionally, an international armed conflict occurs when one country uses force against a group within another country without that country's consent, which is occurring in the case of Gaza and West Bank. 
• Secondly, both Palestine and Israel are parties to the 1949 Geneva Conventions. According to Common Article 2 of these Conventions, armed conflicts between two contracting parties are considered international in nature. 
• Lastly, Israel's occupation of Palestinian territory is considered a belligerent occupation.[xxiii] The Panel determines that the international armed conflict began no later than October 7, 2023, when Israel initiated a response to Hamas's attack by employing force within the territory of Palestine without the latter's consent.[xxiv]

As for crimes against humanity, as defined by article 7 of the Rome Statute and unlike war crimes, do not necessitate a connection to an armed conflict but must occur within the framework of a 'widespread or systematic attack directed against any civilian population', as part of a State or organizational policy. The Panel agrees with the Prosecutor's assessment that these criteria have been fulfilled in this case. 

The Crimes 

1. Hamas

Assessing the warrants against Hamas leadership, The Prosecutor has issued arrest warrants against three senior Hamas leaders for war crimes and crimes against humanity. These charges include murder, extermination, taking at least 245 persons hostage, rape, sexual violence, torture, cruel treatment, and outrages upon personal dignity, all committed during and after the events of 7 October 2023. [xxv] The suspects are Yahya Sinwar, Head of Hamas in the Gaza Strip; Mohammed Deif, Commander-in-Chief of the al-Qassam Brigades of Hamas; and Ismail Haniyeh, Head of Hamas’ Political Bureau. 

The Prosecutor aims to charge Sinwar, Deif, and Haniyeh as co-perpetrators under article 25(3)(a) of the ICC Statute, alleging they had a common plan to attack military bases in Israel, kill civilians, and take hostages.[xxvi] Article 25 of the ICC Statute specifies the various forms of individual criminal responsibility, including directly committing crimes, ordering or soliciting them, aiding or abetting, and contributing in other ways to their commission.  Additionally, the Prosecutor asserts their individual criminal responsibility under other forms of liability outlined in article 25(3) and as superiors under article 28 of the ICC Statute for failing to take necessary and reasonable measures to prevent or repress the crimes, or to refer the matter to the appropriate authorities for investigation and prosecution. Article 28 holds military commanders and other superiors criminally responsible for crimes committed by forces under their effective command if they fail to prevent or repress the commission of these crimes or to submit the matter for investigation and prosecution. 

After reviewing evidence provided by the Prosecutor, the Panel claimed that there are reasonable grounds to believe the three suspects had a coordinated plan involving war crimes and crimes against humanity. The systematic and coordinated nature of the crimes, their scale, suspect statements, evidence of sophisticated planning, and the ideology and past practices of Hamas support this finding, as per the Panel. The Panel claims these crimes were part of a widespread and systematic attack against Israeli civilians, consistent with Hamas's organizational policy.[xxvii]

2. Israel 

The Prosecutor seeks arrest warrants against Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Israeli Minister of Defense, for the war crime of ‘intentionally using starvation of civilians as a method of warfare’ under article 8(2)(b)(xxv) of the ICC Statute. This includes causing great suffering, willful killing, and targeting civilians, as well as crimes against humanity like murder, extermination, and persecution due to the systematic deprivation of essential supplies for Palestinian civilians in Gaza. The Prosecutor also seeks to charge Netanyahu and Gallant with the crime against humanity of other inhumane acts and the war crime of willfully causing great suffering, serious injury to body or health, or cruel treatment, with respect to the non-lethal suffering inflicted through starvation of the civilian population of Gaza. The investigation also covers other alleged crimes related to the bombing campaign in Gaza.[xxviii]

Netanyahu and Gallant are accused of planning to use starvation and violence against Gaza’s civilian population to eliminate Hamas, secure the return of hostages, and impose collective punishment.  They allegedly failed to prevent or repress their subordinates' crimes, making them criminally responsible as superiors, violating also article 28 of the Statute. Their actions included imposing a siege, restricting essential supplies, and attacking facilities and humanitarian workers. “This deprivation of objects indispensable to civilians’ survival took place in the context of attacks on facilities that produce food and clean water, attacks against civilians attempting to obtain relief supplies and attacks directed against humanitarian workers and convoys delivering relief supplies, despite the deconfliction and coordination by humanitarian agencies with Israel Defence Forces.”[xxix]

The Panel assesses that there are reasonable grounds to believe the suspects committed these crimes against thousands in Gaza. The Panel believes also that Netanyahu and Gallant made essential contributions to this plan, evidenced by their statements and those of other Israeli officials, the systematic nature of the crimes, and their leadership roles in decision-making bodies. 

There are also reasonable grounds to believe that the starvation campaign and associated acts of violence involved the severe deprivation of victims’ fundamental rights by reason of their identity as Palestinians. This can be qualified as the crime against humanity of persecution. [xxx]

The Panel concludes there are reasonable grounds to hold them responsible as superiors, given their knowledge of the crimes and failure to act to prevent or repress them.

Therefore, assessing the charges and the evidence, the Panel has agreed with the Prosecutor’s applications for arrest warrants, stating that the provided evidence clearly establishes the Court’s jurisdiction over the alleged crimes.

The Responses 

While the ultimate decision rests with the judges regarding the acceptance of these warrants, the requests have sparked a variety of strong reactions. 

Netanyahu condemned the ICC's decision, calling it a disgrace and an attack on Israel and Israeli Defence Minister Yoav Gallant has rejected the arrest warrants as well. Meanwhile, Hamas denounced the ICC prosecutor’s move to seek arrest warrants against its leaders, accusing Karim Khan of attempting to “equate the victim with the executioner.”[xxxi]

The US and UK governments have dismissed the ICC’s attempts to prosecute Israeli Netanyahu and Gallant as “outrageous” and “deeply unhelpful.” US Secretary of State Antony Blinken even mentioned that the Biden administration would collaborate with Congress to develop “an appropriate response,” which could include sanctions against the ICC. [xxxii]

They argue that these charges falsely equate the leaders of a democratically-elected government with those of a recognized terrorist organization.[xxxiii]

The ICC has consistently faced scrutiny over its credibility and impartiality, often accused of practicing selective justice and focusing predominantly on African cases. This marks the first instance of a Western state being charged by the Court. In an interview, Khan noted that a senior Western official had cautioned him that the ICC was “built for Africa and for thugs like Putin”—implying it wasn’t intended for the West and its allies. [xxxiv]

Europe is split on these requests. Belgium, currently holding the EU’s rotating presidency, asserted that crimes in Gaza should be prosecuted irrespective of the perpetrators. Conversely, Italian Foreign Minister Antonio Tajani, in a local TV appearance, argued against equating the crimes of Hamas—a movement committed to Israel's destruction on Oct. 7—with the response of a democratically elected government. Meanwhile, France stated that it had been cautioning for months about the necessity for strict adherence to international humanitarian law, particularly highlighting the unacceptable level of civilian casualties in Gaza.[xxxv]

What’s Next 

Legally, Prosecutor Karim Khan's request goes to a pre-trial chamber. If the judges find "reasonable grounds" to believe that war crimes or crimes against humanity have been committed, they will issue an arrest warrant. The warrant must specify the person, the specific crimes for which the arrest is sought, and a statement of facts alleged to constitute those crimes. Although the ICC lacks the means to enforce an arrest, the Rome Statute obliges all 124 ICC signatory states to arrest and hand over any individual subject to an ICC arrest warrant if they set foot on their territory.

Politically, some believe that the ICC request might bolster Netanyahu's internal support, which had been waning. He may use the situation to gather more backing by framing the arrest as an attack on Israel. Moreover, experts suggest that the request has not yet impacted the warfare strategies of either side, as fighting continues in northern Gaza and famine spreads in the enclave. [xxxvi]

However, as several European countries recognize the Palestinian state, the ICC intensifies its actions, and the International Court of Justice prepares to rule on halting Israel's Rafah offensive in Gaza, Israel finds itself in a high-stakes showdown with international law. The outcome of this legal battle remains to be seen.