ICC issues arrest warrants for Netanyahu, Gallant for Gaza 'war crimes'

In a blockbuster ruling that shook the military, diplomatic, and legal worlds, the International Criminal Court issued arrest warrants for Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant on Thursday.

The ICC cited reasonable grounds to believe that Netanyahu and Gallant committed the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution, and other inhumane acts.

While Israel and the US condemned the ruling – which is the first time the court has issued arrests for officials from a democratic state – as biased, or going beyond the ICC’s mandate, the EU, France, Ireland, and several other countries said they would honor the arrest warrants.

This means that Netanyahu and Gallant will likely be unable to travel to most European countries and a variety of other nations in the ICC’s 120-plus member states. They will still be able to travel to the US – which is not an ICC member – and various Middle Eastern and other states. There are also some states that have ignored ICC arrest warrants, given that there is no effective enforcement mechanism.

Regarding starvation, legal briefs on behalf of Israel found that the IDF’s humanitarian efforts were initially delayed by several days of fighting done to expel the Hamas invasion, which went on for the greater part of the week after October 7, 2023, as well as another week of initial massive deployment efforts of around 100,000 troops to the Gaza front, many of whom also lacked proper food and supplies.

Addressing accusations of war crimes

However, from October 21, 2023, onwards, the briefs found that the IDF facilitated humanitarian aid convoys (initially via the Nitzana crossing).

Further, the groups said there is no war crime for first providing aid to one’s troops at a minimal level before facilitating aid to a foreign civilian population, and that the delay was short-lived and did not lead to starvation, given the amount of food and supplies previously stocked up in Gaza.

The groups called out ICC Prosecutor Karim Khan for implying that Israel closed the Erez and Rafah crossings. Hamas destroyed the Erez crossing, and the Rafah crossing has always been a mixed project between Israel and Egypt.

Regarding the Kerem Shalom crossing, which was only opened in mid-December, complex arguments abound about whether it could not have been opened earlier, because the IDF did not have sufficient security control in northern Gaza to keep the crossing and aid coming from it safe, or whether there were internal Israeli political issues. Generally, the groups argued that there is no evidence of Israel wholesale blocking aid.

Rather, the groups asserted that the IDF set innovative and high standards for providing aid in a complex urban warfare zone, where Hamas was trying to steal or siphon the aid away from its own civilian population, making the challenges involved beyond anything that other democracies have had to contend with.

The ICC Pretrial Chamber decision surprisingly did not address most of these points at all, and essentially engaged in a blanket acceptance of the prosecutor’s narrative, finding reasonable grounds to believe that Netanyahu and Gallant knowingly deprived Gaza’s civilian population of essential supplies – including food, water, fuel, and medical aid – in violation of international humanitarian law.

These actions, said the court, allegedly created life-threatening conditions, leading to civilian deaths from malnutrition and dehydration.

Surprisingly, the ICC said it found that decisions to allow limited humanitarian aid were often conditional, and “not made to fulfill Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied.” Rather, these decisions were a response to international pressure and requests by the US, the court said.

The ICC stressed that whether the decisions were conditional or not, “increases in humanitarian assistance were not sufficient to improve the population’s access to essential goods.”

These comments did not show it was weighing the criminal law rule of proving an item beyond a reasonable doubt, given that it appeared to disregard Israeli claims of having facilitated hundreds of trucks of aid per day during certain periods, and given that it presumed any positive act by Israel in this area to be based on a negative intent, as opposed to a potential positive intent to respect international law.

Regarding allegations that Netanyahu and Gallant ordered the IDF to deliberately target civilians, the Pretrial Chamber’s ruling was narrower.

Rather than a global finding of war crimes against Netanyahu, Gallant, and Israel, the court limited its ruling, saying “the material provided by the prosecution only allowed it to make findings on two incidents that qualified as attacks that were intentionally directed against civilians. Reasonable grounds to believe exist that Mr. Netanyahu and Mr. Gallant, despite having measures available to them to prevent or repress the commission of crimes or ensure the submission of the matter to the competent authorities, failed to do so” in those two incidents.

In addressing targeting issues, briefs supporting Israel argued that the IDF developed innovative technologies to help move and map out the movements of large Palestinian civilian groups to ensure their safety despite massive security challenges.

According to the briefs, the IDF is up against a unique enemy, in that Hamas systematically uses its civilian population and their civilian buildings like hospitals, mosques, and schools, as human shields.

The briefs noted that Hamas fired 10,000 rockets into Israel’s home front, including ongoing through July and August, something that Western militaries have not had to face.

Most importantly, the groups interviewed forward commanders and troops and found that their understanding of the laws of war corresponded to proper views as directed by the IDF Legal Division.

From the perspective of the ICC’s own laws, the briefs said it was premature for Khan to get involved when the IDF is still in the early and middle stages of probing its own alleged war crimes.

In fact, the groups said the IDF is now probing around 300 possible war crimes, nearly double the previous number reported.

On July 19, the IDF Legal Division opened around 75 full criminal probes, with 60 operational probes, for a total of under 150.

This was a significant update from May 27, when IDF Military Advocate General Yifat Tomer Yerushalmi publicly announced the opening of around 70 criminal probes.

The group said Khan cannot make even any initial conclusions about potential war crimes for Netanyahu and Gallant without evidence about whether the soldiers who they allegedly ordered to commit war crimes in fact perpetrated such crimes.

Rather, the group said it was quite possible that the broader IDF apparatus directed by Netanyahu and Gallant acted properly, but that there were a number of incidents of failures by middle- and lower-level commanders.

While the ICC’s deliberate targeting of civilian allegations was limited to only two incidents, there were no indications that the ICC Pretrial Chamber had taken into account any of these contexts or arguments.

That said, the ICC did say Israel could raise many defenses even after the arrest warrants were issued, as well as at any future indictment or trial point.

As such, the ICC’s findings are only preliminary and do not reflect a finding of fact against Netanyahu or Gallant per see.

One area where Israel failed to show up according to many Israeli lawyers – and that could have avoided or at least significantly delayed the arrest warrants – was by opening a state inquiry into the alleged war crimes allegations.

Israel did exactly that after the 2008-09 Gaza conflict, and the Turkel Commission succeeded at pushing off any ICC involvement for another five years, until after the 2014 Gaza conflict.

Former deputy attorney-general for international law Roy Schondorf, Attorney-General Gali Baharav-Miara, and Tomer Yerushalmi all warned arrests could be issued if Israel did not open such an inquiry.

The Prime Minister’s Office called the decision antisemitic, “equivalent to a modern-day Dreyfus trial – and it will end the same way.”

It added, “Israel vehemently rejects the absurd and false actions and accusations against it by the International Criminal Court, a biased and discriminatory political body.”

The PMO also said the decision was made by “a corrupt chief prosecutor attempting to save himself from severe allegations of sexual harassment, and by biased judges driven by antisemitic hatred toward Israel,” accusing Khan of lying to US senators when he said he would not “act against Israel before visiting” Israel.

“No anti-Israel decision will prevent the State of Israel from defending its citizens,” the PMO added, saying that the prime minister “will not succumb to pressure, will not be deterred, and will not retreat until all the war objectives set by Israel at the start of the campaign are achieved.”

While the warrants were classified as “secret” to “protect witnesses and to safeguard the conduct of the investigations,” the court released the information because “conduct similar to that addressed in the warrant of arrest appears to be ongoing,” it said.

The court also said it would be in the best interest of the victims and families that they be made aware of the warrant’s existence.

Along with Netanyahu and Gallant, the court issued an arrest warrant for Hamas leader Mohammed Diab Ibrahim al-Masri, also known as Mohammed Deif.

The court said there are reasonable grounds to believe Deif is responsible for crimes against humanity, including murder, extermination, torture, and rape. The court also said there are reasonable grounds to believe Deif is responsible for war crimes, including murder, cruel treatment, torture, taking hostages, and rape and other form of sexual violence.

The court found reasonable grounds to believe that Deif’s alleged crimes against humanity were “part of a widespread and systematic attack directed by Hamas and other armed groups against the civilian population of Israel.” These attacks included instances of firing on people seeking shelter and throwing grenades at them. The killings qualify as “the crime against humanity and the war crime of murder,” the court said.

The prosecution had initially filed applications for warrants of arrest for Ismail Haniyeh and Yahya Sinwar. Following confirmation of their deaths, the chamber granted the withdrawal of the applications on August 9, 2024, and October 25, 2024, respectively.

The ICC expanded on the crimes Deif is accused of, saying it found probable cause to believe that on October 7, armed men entered communities in the South and the site of the Nova music festival, carrying out mass killings.The court also found that some hostages were subject to sexual and gender-based violence while in captivity. This included “forced penetration, forced nudity, and humiliating and degrading treatment,” the court said.

“Mr. Deif, in his role as the commander of the al-Qassam Brigades, and through his actions prior to, during, and after the October 7 operation, is responsible for the commission of these crimes,” the court said.

The prosecution indicated that it would continue to gather information with respect to his reported death. The court said that on November 15, the prosecution, referring to information from both the Israeli and Palestinian authorities, notified the chamber that it is not in a position to determine whether Deif has been killed or remains alive, leading the chamber to issue the present warrant of arrest.

Israel has confirmed Deif’s death, and Hamas told Arabic newspaper Asharq Al-Awsat that Deif was killed earlier this month. This left the impression that the arrest warrant was issued to preserve a thin veil of even-handedness between the sides of the conflict.

Israel had filed an official objection to the ICC regarding the legality of the prosecutor’s request to issue arrest warrants in September, also objecting that the court had no jurisdiction because Palestine is not a state – a requirement for jurisdiction to be conveyed to the court.

Israel said the court has no authority to discuss the Palestinian complaint against it, which recently led to the prosecutor’s request to issue arrest warrants against the prime minister and the defense minister.

These claims were rejected in a major pre-trial 2021 decision, with the chamber noting that “the acceptance by Israel of the court’s jurisdiction is not required, as the court can exercise its jurisdiction on the basis of territorial jurisdiction of Palestine, as determined by Pre-Trial Chamber I in a previous composition.”

The court also said the “prosecution notified Israel of the initiation of an investigation in 2021. At that time, despite a clarification request by the prosecution, Israel elected not to pursue any request for deferral of the investigation,” rejecting Israel’s second objection.

Anna Barsky contributed to this report.