Correction: The ICC prosecutor on Monday filed an application for arrest warrants that will be considered by the court’s judges. A previous version of this article contained incorrect information.
The prosecutor of the International Criminal Court (ICC) is seeking arrest warrants for the Hamas leaders Yahya Sinwar and Ismail Haniyeh along with Israeli Prime Minister Benjamin Netanyahu and his defense minister citing evidence of war crimes committed in the ongoing war between the militant group and the state of Israel.
ICC Prosecutor Karim Khan said in a statement that Sinwar, the head of the Hamas movement in Gaza, Haniyeh, the top political leader for Hamas, and Mohammed Diab Ibrahim Al-Masri, the commander of the Hamas military wing, “bear criminal responsibility” for war crimes committed against Israel, including the taking of hostages, sexual violence, extermination and torture.
“We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organisational policies,” Khan wrote.
Khan also said Netanyahu and Israeli Defense Minister Yoav Gallant bear criminal responsibility for starvation as a method of war, the intentional targeting of civilians, extermination and persecution, among other war crimes.
The application for arrest warrants had been expected after plans were leaked in the press last month, drawing backlash from Israel and from GOP congressional leaders in the U.S. who are strong Israeli supporters. The Republican lawmakers warned the ICC against the move and reportedly drafted legislation to sanction the court if it went ahead with the warrants.
Judges at the ICC will now consider whether to uphold the request for arrest warrants, a process that can take months.
The ICC, founded in 2002, is seated in The Hague, Netherlands, and tries individuals for specific crimes. The court previously issued an arrest warrant for Russian President Vladimir Putin for his alleged crimes in abducting children from Ukraine. The ICC is independent from the United Nations, unlike the International Court of Justice, which hears disputes between nations and is hearing a case filed by South Africa accusing Israel of genocide over its war in Gaza.
The U.S. and Israel have never ratified the Rome Statute that established the ICC and thus are not parties to the court. Still, if Netanyahu or Gallant were to travel to a country that is a party to it, officials there would be obligated to arrest them.
Khan’s official move Wednesday likely will draw immediate backlash from Israeli officials, who charge that they are defending the nation against a legitimate threat after Hamas invaded southern Israel on Oct. 7, killing more than 1,100 people and taking around 250 hostages. In Gaza, around 130 hostages are still being held, but it’s not clear how many of them are alive.
Israel has carried out a ferocious war in response to the Hamas attacks, killing more than 35,000 people in Gaza, according to the Hamas-run local health ministry. The northern part of the territory is suffering from a full-blown famine, according to the United Nations, and the rest of the strip is struggling to access basic necessities like food and water.
While Netanyahu has maintained he is doing all he can to get humanitarian aid into Gaza, aid groups and the United Nations have accused Israel of impeding the ability for trucks to enter through land crossings. In his statement Monday, Khan accused Israel of closing border crossings and restricting the transfer of humanitarian aid into Gaza as part of a strategy to punish the Palestinian people.
The war has become a major political challenge for President Biden as he balances ensuring the security of Israel with minimizing the death and damage to Gaza. His administration found in a State Department review earlier this month that it was “reasonable to assess” Israel has committed war crimes with U.S. weapons in Gaza and the West Bank, but did not make a conclusive finding because American officials did not have the ability to make determinations on specific incidents.
While Khan said Israel has a right to defend itself, he said no country is above respecting international humanitarian law. He also said Israel’s “crimes against humanity were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy.”
He cited evidence his office collected, including interviews with survivors and eyewitnesses, authenticated videos and photos and satellite imagery, to back his claim that Israel “intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.”
Similarly, he found the Hamas leaders he issued warrants for were criminally responsible for killing hundreds of civilians and the taking of hostages on Oct. 7 after a detailed investigation of the attack. Khan also described evidence of hostages being kept in inhumane conditions. He said the Hamas leaders have acknowledged responsibility to their hostages, and Oct. 7 “could not have been committed without their actions.”
Khan said that he conducted an independent and impartial investigation and that “no one can act with impunity” or is above international law.
“Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse,” he said. “In doing so, we will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.”
Updated at 8:27 a.m. EDT