(Editor’s Note: This article is part of our new symposium on the ICC and the Israel-Hamas war.)
On Monday, International Criminal Court (ICC) Prosecutor Karim Khan submitted requests for arrest warrants against high Hamas and Israeli officials to the Court’s Pre-Trial Chamber (PTC) for approval – a move expected for the past few weeks. The PTC must now decide, based on the evidence Khan submitted, whether there are “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” (Rome Statute, art. 58(1)(a)).
If so, the Court will issue warrants against Hamas leaders Yahya Sinwar (Hamas’s head in Gaza), Mohammed Diab Ibrahim al-Masri (leader of Hamas’s military wing, the al-Qassam Brigade), and Ismael Haniyeh (head of Hamas’s political bureau, who resides in Qatar). The Prosecutor accuses them of eight different war crimes and crimes against humanity: murder, extermination, hostage taking, sexual violence, torture, cruel treatment, outrages upon personal dignity, and “other inhumane acts” – the last six of these “in the context of captivity” of the hostages.
Prosecutor Khan has also requested arrest warrants against Israel’s prime minister Benjamin Netanyahu and Defense Minister Yoav Gallant, accused of seven war crimes and crimes against humanity. These are starvation of civilians as a weapon of war, willfully causing great suffering or serious injury to body or health, willful killing or murder, intentionally directing attacks against a civilian population (all these are war crimes) plus extermination and/or murder, persecution, and “other inhumane acts” as crimes against humanity.
Nobody claims that these leaders have personally killed or tortured anyone. That doesn’t matter, because anyone who “orders, solicits, or induces” others to commit Rome Statute crimes can be charged as a principal (art. 25(3)(b)).
What follows are some preliminary thoughts and questions – explaining some of the charges, but also asking why certain charges were not in Prosecutor Khan’s request.
What I will not comment on is whether any of the charges against Netanyahu and Gallant are justified, for one simple reason: I have no idea what evidence the prosecutor has to support the accusations. Khan’s public announcement asserts that his team set a threshold even stronger than reasonable belief: “a realistic prospect of conviction.” But, lacking insider knowledge of the evidence or the facts on the ground, it would be completely irresponsible to opine on the strength of his cases – not that this is likely to stop anyone from sounding off about it. U.S. President Joe Biden and leaders in the UK, Austria, and the Czech Republic have denounced the Prosecutor’s move as outrageous “false equivalency.” That response misses the mark. An accusation that both sides have committed war crimes does not say the two sides are morally equivalent. It does not say they are politically equivalent. It does not even say they are legally equivalent. All it means, as Khan said in an interview Monday, is that “no people anywhere are saints.”
One way they are not equivalent is that Israel can stop the ICC investigation in its tracks by launching its own investigation. Under the ICC’s founding principle of complementarity, a case is “inadmissible” if it is being “investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” (Rome Statute art. 17(1)(a)). Israel has one of the world’s most sophisticated justice systems. It is clearly able to investigate the charges. Palestine, on the other hand – meaning the Palestinian Authority – is in no position to investigate and prosecute war crimes by Hamas committed in Israel and Gaza, even if it wanted to.
U.S. Secretary of State Antony Blinken has accused the Prosecutor of ignoring complementarity by not “allowing the Israeli legal system a full and timely opportunity to proceed. … The prosecutor did not afford the same opportunity to Israel, which has ongoing investigations into allegations against its personnel.” This too misses the mark. It may be that Israel is investigating war crimes allegations against individual IDF fighters on the ground – but it shows no intention of investigating Netanyahu and Gallant, and these are the men the prosecutor has accused. It is not too late for Israel to exercise complementarity by investigating the accusations against its leaders.
With those cautions in mind, what do we make of the charges themselves?
Extermination versus Genocide
The most noteworthy, and potentially confusing, counts in the request are the accusations against both sides’ leaders of “extermination” as a crime against humanity – and the conspicuous absence of the charge of genocide.
For those unfamiliar with international criminal law, extermination and genocide may seem like two names for the same crime. Obviously, campus demonstrators and others over the past months have hurled the accusation of genocide against Israel, infuriating many Israelis and their supporters. So did an unusually intemperate report by U.N. Special Rapporteur Francesca Albanese, whose “Anatomy of a Genocide” draft report speculatively dismissed all of Israel’s military justifications for the Gaza war as mere “humanitarian camouflage” for genocide, adding that in her opinion genocide is “inherent to settler-colonialism” (and, obviously, assuming without argument that Israel is a settler-colonialist state). South Africa has accused Israel of genocide, in litigation before the International Court of Justice, and it may seem as though Prosecutor Khan is now confirming that accusation by accusing Netanyahu and Gallant of extermination. That is untrue, because the two crimes are quite different.To be clear: with or without genocide, the other accusations against the Israeli leaders are exceptionally grave.
The Hamas defendants are also charged with extermination, but not with genocide. As I explain below, there is actually a strong case for calling the October 7th attack genocide against a part of the Israeli people. To see why, we need to examine the difference between the crimes.
That difference lies in the different definitions of “crime against humanity,” “extermination,” and “genocide.” Crimes against humanity (CAH for short) are crimes committed as part of an organized attack on a civilian population; the Rome Statute names 11 CAHs, one of which is extermination. To count as “extermination,” a perpetrator must have killed at least one person “as part of a mass killing” (ICC Elements of Crimes, Article 7(1)(b)(2)). “Genocide” requires something even more sinister: an intention to destroy a national, racial, ethnic, or religious group as such “in whole or in part.” A key difference is the presence or absence of genocidal intention – the intention to destroy the group.
Israel’s rebuttal of genocide accusations has always been that it is acting in self-defense against a deadly threat in a war that it did not start and did not want; and that it aims to destroy Hamas, not the Palestinian people in Gaza. In fact, the Prosecutor explicitly agrees that Israel “has a right to take action to defend its population.” (The ICJ, in its 2004 advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ¶141, called it a duty.) Israel argues that the civilian casualties are unintended collateral damage (“incidental” in the antiseptic language of international humanitarian law), inevitable because Hamas has so deeply embedded itself in the vicinity of civilians – which is itself a war crime. Israel has denied that the IDF targets civilians, and it insists that it complies with the laws of war.
Obviously, the Prosecutor disagrees that Israel has complied with the law. One notable feature of the legal definition of “extermination” is that it uses the term “killed” rather than “murdered” – and the Elements further explains that “killed” means simply “caused death.” Thus, mass killings don’t mean anything like premeditated murders, although the Prosecutor’s arrest warrant request charges “extermination and/or murder,” indicating that he is not ruling out that some Israeli killings are murder. The expert panel advising the prosecutor explains why here, ¶¶29–31. The panelists clarify that the charge refers to “the killing of civilians who died as a result of starvation,” adding that “a large number of Palestinian civilians have already died in these circumstances.” Ominously, “The Panel’s assessment is that there are reasonable grounds to believe that … the suspects meant these deaths to happen or … they were aware that deaths would occur in the ordinary course of events as a result of their methods of warfare.”
Crucially, the Statute explains that “extermination” can include “the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population” – and that seems to be the heart of the accusation against Israel. It runs parallel to another accusation in the Prosecutor’s statement: that Israel is using starvation as a weapon of war, which is a war crime.
Extermination and deliberate starvation are horrifying charges. They can be plausibly alleged only because of the staggering number of civilian casualties, the famine unfolding in Gaza, and Israel’s foot-dragging (or obstruction) regarding humanitarian aid. Khan points especially to the siege of Gaza that began on Oct.8, cutting off access to food, water, medicine, and electricity. “This took place alongside other attacks on civilians, including those queuing for food; obstruction of aid delivery by humanitarian agencies; and attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza.” As early as Oct. 11, Tom Dannenbaum persuasively made the case that this obstruction looked like the war crime of starvation used as a method of warfare.
But the Prosecutor did not charge genocide, which signals that he does not have sufficient evidence of the intent to destroy the Gazans in whole or in part. And while he left the door open to potential future charges, the omission of genocide at this stage means something, because his team has been looking for evidence for months. His accusations are based on “interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group” – presumably, better evidence than we have seen in the noisy public debates and ICJ filings.
Implicitly, then – and whether he meant to or not – Prosecutor Khan has buttressed Israel’s repeated insistence in the ICJ litigation that there is no plausible genocide case against Israel – in which case, as the Israeli Judge Aharon Barak argued (here, ¶¶6, 19), the ICJ has no jurisdiction over the Gaza war because South Africa’s case was brought solely under the Convention Against Genocide.
Is there really insufficient evidence of genocidal intent? Both South Africa and the Special Rapporteur documented numerous statements by high-ranking Israeli public figures (including cabinet ministers) that can plausibly be interpreted as calls to genocide. (See South Africa’s initial ICJ application, ¶¶101–107, and the Special Rapporteur’s “Anatomy of a Genocide” report, ¶¶50–54.) Israel’s response is that none of this populist rhetoric comes from anyone in the chain of command (see Sir Malcolm Shaw’s oral argument to the ICJ, pages 31–35, §§ 36–52). The absence of a genocide charge in today’s arrest warrant request strongly suggests that Prosecutor Khan agrees that flamethrowing populist rhetoric by figures outside the chain of command is not evidence of genocidal intent within the chain of command.
Those statements may not inculpate Netanyahu, Gallant, and IDF leaders – but they could support charges against right-wing political leaders for incitement to genocide. Even if these men and women aren’t in the chain of command, and even if they are only haranguing their political base, we must not forget that the IDF is a citizens’ army that draws from all sectors of Israeli society including their political base. If any IDF soldiers killed Gazan civilians with genocidal intent, then the leaders who incited them could be guilty of incitement to genocide (Rome Statute, art. 25(3)(e)) – which also happens to be a capital offense under Israel’s own domestic law (here, §§ 2, 3(a)(2)).
Even without the genocide charge, the other accusations against Netanyahu and Gallant are terrible enough. Indeed, Prosecutor Khan comes perilously close to a genocide accusation when he writes that along with eliminating Hamas and returning the hostages, the leaders’ third war aim is to “collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.” Furthermore, his arrest warrant request accuses them of persecution as a CAH, defined in the Rome Statute as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” In other words, he charges group-based animus and serious deprivation of fundamental rights. What is lacking for the charge of genocide is the intent to destroy, rather than “merely” to persecute.
Hamas and the Question of Genocide
What about Hamas? Could its leaders be accused of genocide? The answer is yes, and the case is clearer than the case against Israel, even though the number of deaths Hamas inflicted is far fewer. To those who think that genocide always involves mass killings, this will seem absurd – but there is no numbers requirement for crimes to qualify as genocide as a matter of law. Genocide includes the destruction of the group “in part,” which courts have rightly interpreted as a substantial part. But long ago the ICTY established that “substantial” has to do with the part’s significance or prominence, not numbers alone (Prosecutor v. Krstić, Appeals Chamber Judgment ¶¶12–16).
The October 7th “Al Aqsa Flood” attack included multiple actus rei of genocide, most obviously the murder of over a thousand people and the infliction of serious bodily or mental harm on hundreds more, including the hostages. The significance and prominence of this group of victims could hardly be more obvious, and they probably qualify as a substantial part of the Israeli nation as a whole on the ICTY’s Krstić test. The individual crimes “took place in the context of a manifest context of similar conduct” – a requirement in the Elements for the crime of genocide.
And there seems to be little doubt that they were carried out with the intent to destroy the national group of Israeli Jews in whole or in part. It doesn’t matter that the accused leaders knew the attack could not succeed in that aim: what makes their crimes genocide is the intent to destroy the national group as such, an intent the Hamas leadership has seldom disguised. (Some leaders’ statements were quoted by Israel’s advocate Tal Becker in an ICJ hearing, pp. 15–16, §§ 22–24. Among these is a chilling statement by Hamas official Ghazi Hamad: “We will repeat the October 7 attack time and again, until Israel is annihilated.”)
It does not matter that the 2017 revision of Hamas’s charter removed the overt antisemitism of its 1988 original. It now explains that Hamas’s struggle is not against Jews because of their Jewishness (i.e., their membership in a religious or ethnic group), but against the “Zionists who occupy Palestine” (here, §16). The phrase can be interpreted in more than one way, but the most natural is that it refers to Israeli Jews, understood as a national group. That matters because national groups, no less than religious, racial, and ethnic groups, are protected by the Genocide Convention and the Rome Statute.
Why, then, did the prosecutor not charge genocide against the Hamas leaders? Here I can only speculate that given the enormous disparity in the number of casualties, it would have seemed bizarre and one-sided to charge Hamas with genocide without levying that charge against Israel as well.
Other Omissions: Human Shielding and Intentionally Attacking Civilians
So far, I have focused on genocide and extermination, and considered the significance of Prosecutor Khan’s decision not to charge genocide. Other omissions are also significant, but hard to interpret. I will mention two.
The first is Hamas’s deep embedding in and beneath civilian structures – human shielding that surely accounts for a great deal of the devastation caused by Israel’s campaign to destroy Hamas. Under the Rome Statute, human shielding is a war crime: “Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” (Rome Statute, art. 8(2)(b)(xxiii)). Now it might be objected that Hamas’s aim was never to make its forces immune from attack, but rather to provoke it – to delegitimize Israel by making sure that when the IDF responded to October 7th (as it inevitably would) the result would be horrifying and highly visible damage to Gazan civilians. Of course that is speculation by Hamas’s enemies, and legally Hamas’s expectations of what the IDF would do are irrelevant. The Elements explains that the crime is committed if the perpetrator “took advantage of the location of one or more civilians” intending “to shield a military objective from attack or shield, favour or impede military operations.” At the very least, it seems clear that Hamas intended that placing military assets in civilian structures would impede Israeli military operations.
The most likely explanation of this omission is a peculiarity of this case: that the Gaza War is, in the Prosecutor’s words, “an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel.” In the Rome Statute, human shielding is a war crime only in international armed conflicts (IACs) – a truly unfortunate omission. As the authors of the ICRC’s massive 2005 study Customary International Humanitarian Law noted about in bello rules, “Common sense would suggest that such rules, and the limits they impose on the way war is waged, should be equally applicable in international and non-international armed conflicts” (vol. 1, page xxix). Cabining off one of Hamas’s most serious offenses against its own civilians seems artificial and legally unnecessary. If the Gaza War is indeed part of an international armed conflict with Palestine, it was surely open to the Prosecutor to apply the IAC rules to this egregious violation.
Second, and more minor (but puzzling nonetheless): Prosecutor Khan charged Israeli leaders with the war crime of intentionally directing attacks against a civilian population – but did not charge the same crime against Hamas leaders. He could have, because intentional attacks on a civilian population are Rome Statute crimes in both international and non-international armed conflicts.
Final Observations
Two more observations, unrelated to the above:
First, the current set of accusations concerns only Gaza, not the West Bank. But the West Bank is also part of the “Situation in Palestine” that the Prosecutor has been investigating for several years. So we may see indictments involving the West Bank in the not-too-distant future.
Second, of historical note: as I mentioned above, Prosecutor Khan consulted with a panel of experts, whose report issued concurrently with his announcement Monday; it supports his request for arrest warrants. Among the experts is Theodor Meron, a distinguished jurist, former President of the ICTY, and – notably – a former legal adviser to Israel’s Foreign Ministry at the time of the Six Days’ War. At that time, he wrote a secret memorandum warning that the establishment of settlements in the newly occupied territory would violate Article 49 of the Fourth Geneva Convention. His memo came to light many years later, as Meron himself finally confirmed in a 2017 law review article (The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War). All these decades later, Meron still believes that applying the law faithfully is in Israel’s interest.