Israel, Hamas and the ICC
Understanding war crimes and crimes against humanity
The International Criminal Court prosecutor Karim Khan has filed an application for the arrest warrants of three Hamas leaders (Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh) and two Israeli leaders, Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant.
It’s worth reading the details of Khan’s statement, starting with the war crimes and crimes against humanity committed by Hamas on Oct. 7th.
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
After the Oct. 7 attacks, several commentators wrote about the left’s myopia about Hamas’ brutality and its reluctance to condemn that violence, including rape. But it’s also worth reading the details of Khan’s statement about Israel, focused on Netanyahu and Gallant, for what happened in Gaza since Oct. 8, 2023.
Starvation of civilians as a method of warfare as 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).
Despite the accumulating evidence of the destruction of Gaza and the killing and immiseration of Palestinians, Netanyahu predictably responded with vitriol to Khan’s application:
Mr. Khan also sets a dangerous precedent that undermines every democracy’s right to defend itself against terror organizations and aggressors. The ICC has no jurisdiction over Israel and Mr. Khan’s actions will not stop us from waging our just war against Hamas. But Mr. Khan’s abuse of this authority will turn the ICC into nothing more than a farce …
Through this incendiary decision, Mr. Khan takes his place among the great antisemites in modern times. He now stands alongside those infamous German judges who donned their robes and upheld laws that denied the Jewish people their most basic rights and enabled the Nazis to perpetrate the worst crime in history.1
What particularly rankles Israeli officials and U.S. President Joe Biden is that there is “no equivalence” between Israel and Hamas.2 Yet Khan’s move is unprecedented because it’s his first case against a head of state of a country supported by the West. Not everyone agrees with the Netanyahu and Biden perspective, including Americans for Peace Now.
For the first time in Israel’s history, its leaders may be subject to arrest in the 124 nations, which are ICC signatories. This shameful situation is the result of the Israeli government’s willful disregard of international law, including the denial of aid to a starving population.
Hamas leaders must be held accountable for the horrific events of October 7 and their other war crimes. But as we have been saying for months and months, one set of war crimes does not justify or excuse another.3
Indeed, Khan’s key goal to apply international law in armed conflict towards all parties struck me as rooted in the practice of creating a fairer and more just world. It’s an ideal, though not necessarily enforceable.
No foot soldier, no commander, no civilian leader—no one—can act with impunity. Nothing can justify willfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.
Now, Israel isn’t a party to the ICC, and the U.S. is currently considering sanctions against the ICC for its application for arrest warrants for Netanyahu and Gallant. But that doesn’t mean international law should be ignored.
To understand more about international law, the May 17th episode of the Ezra Klein Show featured an interview with Asli U. Bali of Yale Law School on Israel, Palestine, and the United Nations. It’s an excellent primer on how justice could apply to the Israel-Palestine conflict and explains why Israel receives so much attention from the U.N.
https://www.gov.il/en/pages/spoke-hague200524
See Biden’s response here: https://www.theguardian.com/us-news/article/2024/may/20/biden-icc-warrant-netanyahu
Americans for Peace Now’s release: https://peacenow.org/entry.php?id=43173