In an unprecedented step in the history of the Palestinian-Israeli conflict, the Prosecutor of the International Criminal Court, Karim Khan, announced that he was seeking arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Galant, in addition to leaders from the Islamic Resistance Movement (Hamas).
In his statement, Khan expressed that there are reasonable grounds to believe that Netanyahu, Gallant, and three Hamas leaders – the head of the movement’s political bureau, Ismail Haniyeh, the movement’s leader in Gaza, Yahya Al-Sinwar, and the leader of the Martyr Izz al-Din al-Qassam Brigades, Muhammad al-Deif – bear criminal responsibility for committing war crimes and crimes against… Humanitarianism in the Gaza Strip and Israel.
The statement addressed in particular the repercussions of the Hamas attack on October 7, 2023, on areas around the Gaza Strip, the Israeli war on the Gaza Strip and the accompanying violations of international law and relevant agreements, especially the use of starvation as a means of war against the civilian population in the Gaza Strip.
Palestine and the International Criminal Court
On January 2, 2015, Palestine submitted its instrument of accession to the International Criminal Court to the Secretary-General of the United Nations, officially becoming a party to the Rome Statute, and the statute became effective for the State of Palestine as of April 1 of the same year.
Thus, Palestine accepted the court’s jurisdiction over crimes committed in its territories since June 13, 2014, and in confirmation of the court’s jurisdiction over Palestine, its executive department issued in 2021 a decision granting the court’s territorial jurisdiction over the territories occupied since 1967, which are the Gaza Strip and the West Bank, including East Jerusalem. This means that an investigation will be launched against Israel into all the violations it commits in those areas, regardless of the fact that Israel is not a party to the Rome Statute.
On November 17, 2023, that is, 40 days after the aggression on the Gaza Strip, the Prosecutor of the Court, Karim Khan, announced that his office had received a new referral regarding the war in Gaza, from South Africa, Bangladesh, Bolivia, the Comoros, and Djibouti, as the Prosecutor confirmed that it was currently being made. An investigation into the situation in the State of Palestine.
The Attorney General’s Office also announced in January of this year that Chile and Mexico had also submitted a referral to the Attorney General regarding the situation in Palestine and the war in the Gaza Strip.
Prosecutor’s statement
Returning to the Attorney General’s statement, he indicated that the Israeli Prime Minister, his Defense Minister, and Hamas leaders committed war crimes and crimes against humanity, while the statement did not address the crime of genocide, which many international parties accuse Israel of committing against the population in the Gaza Strip.
War crimes are defined as serious violations of the Geneva Conventions or other serious violations of the laws and customs applicable in armed conflicts, whether international or otherwise.
Article Eight of the Rome Statute includes a wide range of violations that fall within war crimes. Under this statute, the Prosecutor of the International Criminal Court brought a number of charges against both Netanyahu and Gallant, which are considered war crimes.
These crimes include the use of starvation as a method of warfare, premeditated killing and cruel treatment, and intentionally directing attacks against the civilian population, causing great suffering or serious injury to body or health.
With regard to Hamas leaders, accusations of war crimes included murder, hostage-taking, rape and other acts of sexual violence, torture and cruel treatment, and outrages on dignity in the context of captivity.
As for crimes against humanity, they have been defined in accordance with the Rome Statute and include a number of attacks that are “committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.”
The Prosecutor of the Criminal Court accused both Netanyahu and Gallant of committing crimes against humanity during the war on Gaza, namely murder and extermination, including deaths resulting from hunger, persecution and other inhumane acts that are inconsistent with the Rome Statute.
While accusations against Hamas leaders of crimes against humanity included allegations of committing a number of acts (murder, rape, acts of sexual violence, torture, and other inhumane acts in the context of captivity).
Fundamental differences
Three fundamental differences can be noted between war crimes and crimes against humanity:
- It requires that war crimes only occur during armed conflict, whether international or non-international, while crimes against humanity may be committed in situations of peace, armed conflict, or even situations of violence that do not rise to the level of armed conflict.
- Crimes against humanity are required to be committed on a large scale and directed against any civilian population, unlike war crimes which may be the result of individual and isolated acts.
- War crimes can be committed against combatants and non-combatants including civilians, while crimes against humanity require that the attack be directed exclusively against the civilian population.
Contents of the Prosecutor’s statement
The Public Prosecutor’s statement contained a number of terms that indicate the directions of the investigation’s work, which did not discuss all the Israeli violations committed against the residents of the Gaza Strip. The most important observations and contents of the statement can be summarized:
- First: Focus on the crime of starvation:
Although the Prosecutor of the International Criminal Court specified in his statement a number of accusations against the leaders of Israel, as well as the leadership of Hamas, of committing war crimes and crimes against humanity, it seemed noticeable that the policy of starvation committed against the population of the Gaza Strip, which represents a war crime, occupied a large space in the statement.
During the past weeks, Hebrew agencies reported, citing sources in the Israeli government, that the International Criminal Prosecution will focus on accusations related to Israel’s intentional starvation of the population in the Gaza Strip, which is what actually happened.
The statement provided a number of facts about the disastrous effects of this policy, which caused a high number of deaths among Palestinians, including infants and other children and women.
In this regard, he was reminded of the Secretary-General’s statements in which he warned that more than a million people in Gaza are facing catastrophic hunger, “the largest number of people ever recorded anywhere and at any time,” while the description of “catastrophic hunger” represents the fifth stage. From the Integrated Interim Classification of Food Security, which prompted a warning that half of the population in the Gaza Strip would face death from starvation.
Explanations for famine have been extended under the Rome Statute to include “non-food items indispensable for the survival of civilians, such as medicines or clothing.”
While “Israel’s Guide to the Rules of War 2006” stipulates the priority of allowing the civilian population to leave besieged cities, and if this is not possible, the population must be provided with water, food, and humanitarian aid.
Israel’s policy during the war brought the Palestinian population to the brink of famine, and led to escalating accusations against Israel of committing war crimes and genocide, as well as genocide within the framework of crimes against humanity.
- Second: The absence of accusation of committing the crime of genocide
On January 26 of this year, the International Court of Justice issued its decision on precautionary measures in the lawsuit filed by South Africa against Israel for violating the Convention on the Prevention and Punishment of the Crime of Genocide. The Court concluded in its decision that there were reasonable grounds to believe that Israel had violated Indeed, the Convention, in the sense that it commits the crime of genocide against the population in the Gaza Strip during the war.
It was noteworthy that the Prosecutor of the Criminal Court did not accuse the Israeli leaders of committing the crime of genocide, but instead accused them of committing the crime of genocide and murder as crimes against humanity, and in this context the deaths resulting from the starvation policy fall.
In its comment on Article 54 of Protocol I of the Geneva Convention, which prohibits the use of starvation as a method of war, the International Committee of the Red Cross indicated that famine in this case turns into “a weapon to annihilate and weaken populations.”
Article 7 (2) (b) of the Rome Statute states that the term “extermination” includes “the intentional infliction of living conditions, including denial of access to food and medicine, with the intent to destroy a part of a population.”
For this reason, interpretations of the term extermination in genocide crimes suggest that they may also be included in Article 6 (c), which states that “deliberately subjecting a group to living conditions intended to bring it to its actual destruction, in whole or in part,” constitutes the crime of genocide.
There is no clear explanation for why the Public Prosecutor did not resort to accusing Israel of committing the crime of genocide, but it can be noted that crimes against humanity, which include extermination and murder, are committed in the context of a widespread attack and systematic killing, while genocide crimes focus on the destruction of groups, whether national. Or ethnic, religious or otherwise.
Crimes against humanity also do not require proof of intent to commit them, unlike the crime of genocide, in which intent is an essential element in determining whether they occurred or not, which poses great difficulties in proving their occurrence.
In this context, it can be expected that the Prosecutor of the Court will not accuse the Israeli leaders of committing the crime of genocide by preferring to examine other violations that fall within crimes against humanity and war crimes, such as murder, starvation, intentionally directing attacks against civilians, and others.
- Third: International and non-international armed conflict
The prosecutor’s statement to the court indicated that “the alleged crimes were committed within the framework of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas occurring in parallel.”
This characterization raised controversy, especially since non-international armed conflicts were usually linked to civil conflicts, thus weakening the position of the resistance factions in Gaza.
International humanitarian law defines international armed conflicts as a war or armed conflict between two or more states, while non-international armed conflict is a conflict between a state and a sub-state armed group or an armed conflict between sub-state armed groups.
Based on the aforementioned definition, opinions indicate that the conflict is considered non-international as it is between Hamas and armed factions on the one hand and Israel on the other hand, while other opinions believe that the Gaza Strip is still occupied, in addition to the fact that Palestine is considered a state and has been recognized by dozens of countries, which is It makes the conflict an international armed conflict.
The First Protocol to the Geneva Conventions in 1977 relating to international armed conflicts contributed to improving the status of national liberation movements, when it stipulated that its provisions apply to armed conflicts in which people fight against colonial control, foreign occupation, or racist regimes.
It was pointed out that this ruling was limited to the struggle of the Palestinians against the Israeli occupation, as well as the struggle against the apartheid regimes in Africa at the time.
The importance of describing the conflict between Hamas and Israel as an international armed conflict lies in its promotion of the legal status of the movement and the resistance factions in general and granting its members certain rights under international law, such as enjoying prisoner-of-war status for their detainees.
- Fourth: The right to self-defense
Prosecutor Karim Khan noted that “Israel has the right to take measures to defend its population,” criticizing the methods Israel chose to achieve its goals in Gaza, which included deliberately causing starvation and death.
While the criticism directed at Karim Khan was severe, and included statements about the extent of the enormous suffering caused by Israel, his allusion to Israel’s right to defend itself contradicts the advisory opinion of the International Court of Justice on the separation wall in 2004, which rejected the self-defense argument that Israel invokes it on the grounds that it is granted in the event of an attack by another country, and not from within territories under Israel’s control and occupation.
The request submitted by the Prosecutor of the International Criminal Court to the Pre-Trial Chamber to issue arrest warrants in connection with the situation in the State of Palestine, especially the war in the Gaza Strip, represents an unprecedented step that has placed Israel in an internationally critical position.
