By Didier Rebut, Professor at the University of Paris Panthéon-Assas, Director of the Paris Institute of Criminology and Criminal Law, Member of the Jurists Club
In what context did the ICC issue arrest warrants against Benjamin Netanyahu and Yoav Gallant? What are their contents?
These arrest warrants were issued as part of an investigation opened by the ICC Prosecutor into “the situation in the State of Palestine”. This investigation led the ICC prosecutor to request arrest warrants on May 20, 2024 against Mr. Benyamin and Yoav Gallant, accusing them of being responsible for war crimes and crimes against humanity allegedly committed by the Israeli army as part of the war operations it has been carrying out in the Gaza Strip since the Hamas attack of October 7, 2023. It is in response to this request that Pre-Trial Chamber I of the ICC issued these two arrest warrants on November 21.
An arrest warrant is not a priori not public. The pre-trial chamber, however, decided to communicate on the content of the two arrest warrants issued against Benjamin Netanyahu and Yoav Gallant, explaining that acts similar to those covered by these two arrest warrants are being committed. She therefore seems to consider that the disclosure of their content would be justified by the need to alert on the current continuation of the crimes targeted by these warrants while they concern the period between October 8, 2023 and May 20, 2024, which is the date of the Prosecutor's request. She adds that this communication also occurs in the interest of the victims and their families. We can also think that the magistrates of the preliminary chamber mainly wanted to communicate themselves on these arrest warrants to avoid speculation and false information which would not have been lacking if they had remained secret. This publicity had already been made by the ICC Prosecutor when he presented his request on May 20, 2024, since he had jointly made a very precise statement on the facts which, according to him, justified his request. The press release from the Pre-Trial Chamber on the content of the two arrest warrants is therefore a continuation of the publicity given to this procedure.
Concerning their content, the information communicated by the pre-trial chamber reveals that the two arrest warrants largely support the Prosecutor's request, which the latter underlined in a statement published the same day.
As the Prosecutor requested, the two arrest warrants incriminate MM. Netanyahu and Gallant for the commission of war crimes between October 8, 2023 and May 20, 2024 which allegedly consisted of the use of starvation as a method of warfare. The statement states that they knowingly deprived the civilian population of Gaza of food, water, medicine, fuel and electricity by obstructing or limiting humanitarian aid. He specifies that the pre-trial chamber considered that these restrictions did not meet a military objective and that only minimal humanitarian aid was authorized.
The arrest warrants also incriminate MM. Netanyahu and Gallant for crimes against humanity in accordance with the Prosecutor's request. The pre-trial chamber thus considered that the war operations carried out by the Israeli army in the Gaza Strip had given rise to a widespread and systematic attack against its civilian population and that, in this context, crimes against the humanity through murder, persecution and other inhumane acts.
The press release explains these qualifications. Thus, the crime against humanity for murder would be characterized by the destruction of part of the civilian population of Gaza due to the lack of food, water, electricity, fuel and medical supplies; the inhumane acts are characterized by the fact that doctors in Gaza were forced to carry out operations without anesthesia, including on children, due to the fact that the Israeli army allegedly limited, and even intentionally prevented the supply to Gaza of medicines anesthetics; the persecutions would consist of the deprivation of the civilian population of Gaza of their fundamental rights to life and health and while this population would have been targeted for political and/or national reasons. On the other hand, the arrest warrants did not retain the qualification of crimes against humanity by extermination which had been requested by the Prosecutor.
The arrest warrants accuse Messrs. of these war crimes and crimes against humanity. Netanyahu and Gallant as co-authors, which means that their commission is directly and personally reproachable to them. They also indict them for war crimes as civilian superiors for intentionally directing an attack against the civilian population.
What are the effects of these arrest warrants for MM. Netanyahu and Gallant?
These arrest warrants have no immediate effect for MM. Netanyahu and Gallant who live in Israel, which is not a party to the ICC. The Israeli population seems to be resolutely supporting them. They therefore have nothing to fear from these arrest warrants in their country.
The main effect of these arrest warrants is a priori to prevent them from going to a State which has adhered to the statute of the ICC because this accession requires them to respect its decisions and in particular to execute the arrest warrants issued by it if they are in a position to do it. A State party to the ICC should therefore arrest MM. Netanyahu or Gallant if they go to his territory. Of course, this arrest is not certain because it depends on the decision of each State to give effect to these arrest warrants on its territory. But it is difficult for a rule of law to refuse to respect the arrest warrants imposed on it by virtue of an international convention to which it freely agreed to adhere. In this sense, the Italian government has indicated that it would be obliged to have Mr. Netanyahu arrested in Italy, even though it has, at the same time, firmly condemned the ICC decision. The ICC arrest warrants therefore put Messrs. Netanyahu and Gallant to be arrested in countries that have joined the ICC. This should dissuade them from going there except, perhaps, in exceptional cases where they would have received the assurance of not being worried. For example, Mr. Victor Orban, Prime Minister of Hungary which is a party to the ICC, indicated that he did not intend to give effect to the arrest warrants and that he even invited Mr. Netanyahu to visit its territory.
On the other hand, ICC arrest warrants have no effect in countries that are not parties to its statute. This is of course the case of the United States, which has strongly criticized the ICC and which will likely take retaliatory measures against it. This is also the case, for example, of China, India or Russia which have not joined the ICC. MM. Netanyahu and Gallant can go there without any risk of being arrested, since the ICC arrest warrants have no value there.
The ICC pre-trial chamber also issued an arrest warrant on the same day against Mohamed Deïf, military leader of Hamas.
The ICC Prosecutor had simultaneously requested arrest warrants against MM. Netanyahu and Gallant and against Ismaël Haniyeh, head of the Hamas political bureau, Yahya Sinouar, head of Hamas in the Gaza Strip and Mohammed Deif, military leader of Hamas. This simultaneity had aroused criticism who accused him of having placed the leaders of a terrorist organization and the elected leaders of a democracy on the same level.
Ismaël Haniyeh and Yahya Sinouar were killed by the Israeli army before the pre-trial chamber made its decision, leading the ICC prosecutor to withdraw his requests. On the other hand, the request for an arrest warrant for Mohammed Deif was maintained because proof of his death, which is strongly presumed, was not provided. It was this request which led the pre-trial chamber to issue an arrest warrant against him on the same day as those issued against MM. Netanyahu and Gallant. In doing so, the pre-trial chamber continued the prosecutor's approach of not making a distinction between the crimes accused of Israel and its leaders and the crimes accused of Hamas and its leaders. This also very conveniently allows him not to issue an arrest warrant only against MM. Netanyahu and Gallant, while there seems to be little doubt about the death of Mohammed Deif.
The arrest warrant against Mohammed Deif relates to war crimes and crimes against humanity. The facts in question are those committed on October 7, 2023. The arrest warrants state that Mohammed Deif would be a co-perpetrator of these crimes, that he would have ordered or encouraged their commission and would not have exercised appropriate control over the forces under his effective command and control that allegedly committed these crimes. As has been said, this arrest warrant should remain ineffective given the presumed death of Mohammed Deif.
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