The International Criminal Court (ICC) in The Hague last week issued an arrest warrant against, Israeli Prime Minister Netanyahu and his former Defense Minister Gallant, as well as against now deceased Hamas military commander leader, Mohammed Deif.
A statement by ICC Chief Prosecutor, Karim Khan, said the ICC judges found there were “reasonable grounds” that Netanyahu and Gallant “committed the war crime of using starvation as a method of warfare and crimes against humanity of murder, persecution, and other inhumane acts, as a direct perpetrator, acting jointly with others. The Chamber also found reasonable grounds to believe that they are each responsible for the war crime of intentionally directing attacks against civilians as a superior.”
Professor of International Criminal Law Geert-Jan Knoops, who is also chief lawyer at the ICC, does think that the consequences will not be very great.
Knoops told Dutch public television NOS that the judges hade little choice but to honor Khan’s reqaues. “After all, they do not investigate themselves,” said. “They are presented with material in which the Israeli army and Hamas have offered no counter-evidence.” He points out that the Criminal Court has never refused such a request from a prosecutor.
But even with such an arrest warrant, the road to trial for those involved is still long. In any case, that will only be possible if they are first extradited to The Hague after being arrested in one of the countries affiliated with the Criminal Court.
“They will then have to travel to one of the countries,” Knoops said. “They won’t take that risk. I don’t think an arrest warrant will have major consequences in practice.”
And even if it should come to extradition, it is not a foregone conclusion that it will come to trial in all cases, Knoops believes. He says the cases differ enormously from one another.
“Regarding the Hamas case, I do consider the chance of a trial to be high,” the lawyer says. He calls the evidence that the terrorist organization committed war crimes on Oct. 7 “relatively convincing,” because it is based on images, among other things.
In the case of the Israeli ministers, it is different. Among other things, they are accused of using starvation as a war tactic. “So there it’s really about the appreciation of a military operation,” says Knoops. “Is it in accordance with the law of war or not? Is there actually a plan for starvation? That’s hard to prove.”
Precisely because of these legal differences, Knoops is surprised by the fact that Prosecutor Khan chose to publicize the cases against the Israeli ministers and those against the Hamas leaders at the same time.
“By doing so, he creates the image that the actions of Hamas and Israel are being lumped together. The question is whether that is correct under international law,’’ Knoops says.
Allegations of deliberately using starvation as a method of warfare prominently feature in the ICC’s case against Netanyahu and Gallant. However, the Integrated Food Security Phase Classification (IPC) data shows that most of the population in Gaza is being currently classified in IPC Phase 3, ‘crisis’ which is expected to be the case until April 2025. 16% of the population is in phase 5, defined as ‘catastrophic food insecurity/famine/famine likely’.
Israel argues that it has gone to great lengths to facilitate the entry of food and other humanitarian aid into the Gaza Strip since October 2023, working extensively with a range of allied countries including the US, UAE, and Jordan, as well as NGOs. According to Israel, distribution of aid within the Gaza Strip remains a primary obstacle to ensuring food security, rather than the quantities Israel is allowing to enter. Hamas is known to steal much of the aid that is brought into Gaza.
The ICC also notably failed to seek military advice before issuing these warrants. Independent military submissions from highly experienced non-Israeli veterans were also ignored.
The International Criminal Court, formed in 1998, was not meant to be the world’s police or court. It was created with the responsibility to act only when national courts could not or would not against their citizens, says Ashley Perry, a former advisor to Israeli Foreign Ministers.
According to him, at the heart of the raison d’être of the ICC is the issue of ‘Complementarity’, which means that the ICC has secondary jurisdiction after national courts, and can only act in a given situation if the relevant states are unwilling or unable to prosecute the crimes within their jurisdiction.
‘’That is why the ICC has never issued an arrest warrant against citizens of democratic nations, until now,’’ says Perry.
He stresses that the judicial system in Israel is internationally renowned for its independence. ‘’Not only that, but it has shown minimal regard for an individual’s position or power, sending a president and numerous ministers to prison. There are also three current criminal court cases against the current Prime Minister. I would humbly suggest that it does not show an inability or unwillingness on the part of Israel’s judicial system to investigate its leadership,’’ he adds.
Perry notes that on May 20, the same day that ICC prosecutor Karim Khan made a surprise request for warrants to arrest the leaders of Israel, he suddenly cancelled a visit to Israel where he was supposed to interview and investigate vital facts before making this decision.
‘’Khan was supposed to not just look into evidence to make a decision, but also to look firsthand at Israel’s judicial system to see whether it fits the vital issue of complementarity. He canceled his trip, planned months in advance, hours before his expected arrival to meet a slew of Israeli officials and experts, and decided to rush the request for a warrant through instead, without any further explanation of his erratic and extra-judicial behaviour.’’
This means Khan did not give anyone in Israel a hearing before making his decision.