Yahya Sinwar, Mohammed Deif and Ismail Haniyeh of Hamas and Israel’s Benjamin Netanyahu and Yoav Gallant
The ICC is targeting Yahya Sinwar, Mohammed Deif and Ismail Haniyeh of Hamas and Israel’s Benjamin Netanyahu and Yoav Gallant © FT montage

James Shotter in Jerusalem

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The International Criminal Court’s prosecutor requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and senior Hamas leaders over alleged war crimes, drawing a fierce reaction from Israel and sharp criticism from US President Joe Biden.

In a dramatic escalation of legal proceedings over the war in Gaza, prosecutor Karim Khan on Monday applied for warrants against Netanyahu and Israeli defence minister Yoav Gallant, as well as Hamas military leaders Yahya Sinwar and Mohammed Deif, and its political head Ismail Haniyeh.

“Today we once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader — no one — can act with impunity,” Khan said.

Israeli politicians were united in condemnation of Khan’s announcement, with President Isaac Herzog warning that the “international judicial system is in danger of collapsing”. Netanyahu said: “This is exactly what the new antisemitism looks like.”

Biden said the prosecutor’s move was “outrageous”, insisting that “whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas”.

The ICC’s judges must now decide whether to issue the warrants. If they did so, it would mark the first time that the court, which was set up in 2002, has issued a warrant for a western-backed leader.

Warrants could put Netanyahu and Gallant at risk of arrest if they visited any of the ICC’s 124 member countries — which include most European and Latin American countries and many in Africa and Asia.

Karim Khan making his announcement

I can also confirm today that I have reasonable grounds to believe on the basis of evidence collected and examined by my office that Israeli Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant, bear criminal responsibility for the following international crimes committed on the territory of the state of Palestine from at least the 8th of October 2023. The crimes include starvation of civilians as a method of warfare, willfully causing great suffering, serious injury to body or health or cruel treatment, willful killing or murder, and intentionally directing attacks against a civilian population, as well as crimes against humanity, of extermination, and/or murder, persecution, and allegations of crimes of committing other inhumane acts.

My office submits that these individuals, through a common plan, have systematically deprived the civilian population of Gaza of objects indispensable to human survival. We have reached that conclusion based upon interviews with survivors, many eyewitnesses, experts from satellite imagery, statements from Israeli officials, including the two individuals subject to the presence application, as well as based upon several hundred authenticated videos, photographs, and audio recordings-- many of which were taken and shared by victims and eyewitnesses themselves.

My office charges Netanyahu and Gallant as coperpetrators and as superiors in the commission of these alleged crimes. Israel, like all states, has the right to defend its population. It has every right to ensure the return of hostages that have been criminally and callously taken.

Those rights, however, do not absolve Israel of its obligations to comply with international humanitarian law. Intentionally causing death, starvation, injury and suffering to the civilian population, including so very many women and children, are criminal means to achieve military and political goals. That's what we allege.

ICC prosecutor Karim Khan announcing he is seeking warrants against Israeli and Hamas leaders © ICC/Reuters

Since Hamas is classified as a terrorist organisation by many jurisdictions, the impact would be less dramatic for Sinwar and Deif, who do not leave Gaza, or for Haniyeh, who travels principally to friendly countries.

Legal experts added that the warrants could also affect arms sales to Israel by other countries, particularly from Europe.

Western politicians were divided on the arrest warrants. In the UK, the Conservative government said the ICC did not have jurisdiction in the case, while shadow foreign secretary David Lammy said his opposition Labour party “supports the ICC as a cornerstone of the international legal system . . . whether it is in Ukraine, Sudan, Syria or Gaza”.

The EU chief diplomat Josep Borrell said he took “note” of the ICC prosecutor’s request for arrest warrants, writing on social media platform X that “the mandate of the ICC . . . is to prosecute the most serious crimes under international law”. All EU member states are ICC members.

ICC prosecutor Karim Khan sought warrants against Hamas leaders for extermination as a crime against humanity

I have reasonable grounds to believe that three senior leaders of Hamas, Yahya Sinwar, Mohammad Deif, and Ismail Haniyeh bear criminal responsibility for the following international crimes committed on the territory of Israel and the State of Palestine from at least the 7th of October, 2023.

Extermination as a crime against humanity. Murder as a crime against humanity and as a war crime. The taking of hostages as a war crime. Rape and other acts of sexual violence during captivity as crimes against humanity and as war crimes.

Torture during captivity as a crime against humanity and as a war crime. Other inhumane acts during captivity as a crime against humanity. Cruel treatment during captivity as a war crime and outrages upon personal dignity during captivity as a war crime.

My office submits that there are reasonable grounds to believe that these three Hamas leaders are criminally responsible for the killing of Israeli civilians and attacks perpetrated by Hamas and other armed groups on the 7th of October, 2023. The taking of hostages and the other crimes alleged in our applications.

My office also submits today that there are reasonable grounds to believe that hostages taken from Israel, taken from their homes, taken from their communities have been kept in inhumane conditions, and that some have been subjected to horrendous sexual violence, including rape, while being held in captivity. Those who do not comply with the law should not complain later when my office takes action based upon solid evidence. That day has come.

Today, we underline in the clearest possible fashion that international law and the laws of armed conflict apply to everyone. No foot soldier, no commander, no civilian leader, no one can act with impunity.

ICC prosecutor Karim Khan seeks warrants against Hamas leaders for alleged war crimes and crimes against humanity © ICC/Reuters

Hamas condemned the move against its leaders as lacking “legal basis” and said the attempts to seek the arrest of Israel’s prime minister and defence minister “came seven months late”.

Khan, a British barrister who has worked as the ICC’s prosecutor since 2021, said he was seeking the warrants against Sinwar, Deif and Haniyeh for their alleged responsibility in crimes of extermination, murder, hostage-taking, rape and other acts of sexual violence and torture committed by Hamas.

He said he had requested warrants for Netanyahu and Gallant for their alleged responsibility for using the starvation of civilians as a method of warfare, intentionally directing attacks against a civilian population, and “extermination and/or murder . . . as a crime against humanity”.

Netanyahu attacked the ICC prosecutor’s application as “absurd and false . . . and a distortion of reality”, rejecting “with disgust” the comparison between “democratic Israel and the mass murderers of Hamas”,

He vowed that nothing would stop Israel from pursuing “total victory” against Hamas.

The ICC developments come as Israel is drawing intensifying international criticism for the toll of its seven-month-long offensive, which has fuelled a humanitarian catastrophe in Gaza.

The hostilities in the enclave began when Hamas militants stormed into Israel on October 7, where they killed 1,200 people and took a further 250 hostage, according to Israeli officials.

In response, Israel launched a devastating assault on Gaza, which has so far killed more than 35,000 people, according to Palestinian officials, as well as displacing more than 1.7mn of its 2.3mn inhabitants and reducing most of the area to rubble.

Earlier this year, the International Court of Justice — the UN’s top court, which deals with cases against countries, rather than individuals — began hearing a separate case brought by South Africa accusing Israel of committing genocide against the Palestinians in Gaza.

Israel has vehemently denied the accusations.

Additional reporting by Neri Zilber in Tel Aviv, Raya Jalabi in Beirut, James Politi in Washington and Paola Tamma in Brussels

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