International
Criminal Court
Statement:
20 May 2024
Statement of ICC Prosecutor Karim A.A. Khan KC:
Applications
for arrest warrants in the situation in the State of Palestine
Today
I am filing applications for warrants of arrest before Pre-Trial
Chamber I of the International Criminal Court in the Situation in the
State of Palestine.
On
the basis of evidence collected and examined by my Office, I have
reasonable grounds to believe that Yahya SINWAR (Head of the Islamic
Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab
Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of
the military wing of Hamas, known as the Al-Qassam Brigades), and
Ismail HANIYEH (Head of Hamas Political Bureau) bear criminal
responsibility for the following war crimes and crimes against
humanity committed on the territory of Israel and the State of
Palestine (in the Gaza strip) from at least 7 October 2023:
- Extermination
as a crime against humanity, contrary to article 7(1)(b) of the Rome
Statute;
- Murder
as a crime against humanity, contrary to article 7(1)(a), and as a
war crime, contrary to article 8(2)(c)(i);
- Taking
hostages as a war crime, contrary to article 8(2)(c)(iii);
- Rape
and other acts of sexual violence as crimes against humanity,
contrary to article 7(1)(g), and also as war crimes pursuant to
article 8(2)(e)(vi) in the context of captivity;
- Torture
as a crime against humanity, contrary to article 7(1)(f), and also as
a war crime, contrary to article 8(2)(c)(i), in the context of
captivity;
- Other
inhumane acts as a crime against humanity, contrary to article
7(l)(k), in the context of captivity;
- Cruel
treatment as a war crime contrary to article 8(2)(c)(i), in the
context of captivity; and
- Outrages
upon personal dignity as a war crime, contrary to article
8(2)(c)(ii), in the context of captivity.
My
Office submits that the war crimes alleged in these applications were
committed in the context of an international armed conflict between
Israel and Palestine, and a non-international armed conflict between
Israel and Hamas running in parallel. We submit that the crimes
against humanity charged were part of a widespread and systematic
attack against the civilian population of Israel by Hamas and other
armed groups pursuant to organisational policies. Some of these
crimes, in our assessment, continue to this day.
My
Office submits there are reasonable grounds to believe that SINWAR,
DEIF and HANIYEH are criminally responsible for the killing of
hundreds of Israeli civilians in attacks perpetrated by Hamas (in
particular its military wing, the al-Qassam Brigades) and other armed
groups on 7 October 2023 and the taking of at least 245 hostages. As
part of our investigations, my Office has interviewed victims and
survivors, including former hostages and eyewitnesses from six major
attack locations: Kfar Aza; Holit; the location of the Supernova
Music Festival; Be’eri; Nir Oz; and Nahal Oz. The investigation
also relies on evidence such as CCTV footage, authenticated audio,
photo and video material, statements by Hamas members including the
alleged perpetrators named above, and expert evidence.
It
is the view of my Office that these individuals planned and
instigated the commission of crimes on 7 October 2023, and have
through their own actions, including personal visits to hostages
shortly after their kidnapping, acknowledged their responsibility for
those crimes. We submit that these crimes could not have been
committed without their actions. They are charged both as
co-perpetrators and as superiors pursuant to Articles 25 and 28 of
the Rome Statute.
During
my own visit to Kibbutz Be’eri and Kibbutz Kfar Aza, as well as to
the site of Supernova Music Festival in Re’im, I saw the
devastating scenes of these attacks and the profound impact of the
unconscionable crimes charged in the applications filed today.
Speaking with survivors, I heard how the love within a family, the
deepest bonds between a parent and a child, were contorted to inflict
unfathomable pain through calculated cruelty and extreme callousness.
These acts demand accountability.
My
Office also submits there are reasonable grounds to believe that
hostages taken from Israel have been kept in inhumane conditions, and
that some have been subject to sexual violence, including rape, while
being held in captivity. We have reached that conclusion based on
medical records, contemporaneous video and documentary evidence, and
interviews with victims and survivors. My Office also continues to
investigate reports of sexual violence committed on 7 October.
I
wish to express my gratitude to the survivors, and the families of
victims of the 7 October attacks, for their courage in coming forward
to provide their accounts to my Office. We remain focused on further
deepening our investigations of all crimes committed as part of these
attacks and will continue to work with all partners to ensure that
justice is delivered.
I
again reiterate my call for the immediate release of all hostages
taken from Israel and for their safe return to their families. This
is a fundamental requirement of international humanitarian law.
Benjamin
Netanyahu, Yoav Gallant
On
the basis of evidence collected and examined by my Office, I have
reasonable grounds to believe that Benjamin NETANYAHU, the Prime
Minister of Israel, and Yoav GALLANT, the Minister of Defence of
Israel, bear criminal responsibility for the following war crimes
and crimes against humanity committed on the territory of the State
of Palestine (in the Gaza strip) from at least 8 October 2023:
- Starvation
of civilians as a method of warfare as a war crime contrary to
article 8(2)(b)(xxv) of the Statute;
- Wilfully
causing great suffering, or serious injury to body or health contrary
to article 8(2)(a)(iii), or cruel treatment as a war crime contrary
to article 8(2)(c)(i);
- Wilful
killing contrary to article 8(2)(a)(i), or Murder as a war crime
contrary to article 8(2)(c)(i);
- Intentionally
directing attacks against a civilian population as a war crime
contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
- Extermination
and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in
the context of deaths caused by starvation, as a crime against
humanity;
- Persecution
as a crime against humanity contrary to article 7(1)(h);
- Other
inhumane acts as crimes against humanity contrary to article 7(1)(k).
My
Office submits that the war crimes alleged in these applications were
committed in the context of an international armed conflict between
Israel and Palestine, and a non-international armed conflict between
Israel and Hamas (together with other Palestinian Armed Groups)
running in parallel. We submit that the crimes against humanity
charged were committed as part of a widespread and systematic attack
against the Palestinian civilian population pursuant to State policy.
These crimes, in our assessment, continue to this day.
My
Office submits that the evidence we have collected, including
interviews with survivors and eyewitnesses, authenticated video,
photo and audio material, satellite imagery and statements from the
alleged perpetrator group, shows that Israel has intentionally and
systematically deprived the civilian population in all parts of Gaza
of objects indispensable to human survival.
This
occurred through the imposition of a total siege over Gaza that
involved completely closing the three border crossing points, Rafah,
Kerem Shalom and Erez, from 8 October 2023 for extended periods and
then by arbitrarily restricting the transfer of essential supplies –
including food and medicine – through the border crossings after
they were reopened. The siege also included cutting off cross-border
water pipelines from Israel to Gaza – Gazans’ principal source of
clean water – for a prolonged period beginning 9 October 2023, and
cutting off and hindering electricity supplies from at least 8
October 2023 until today. 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.
My
Office submits that these acts were committed as part of a common
plan to use starvation as a method of war and other acts of violence
against the Gazan civilian population as a means to (i) eliminate
Hamas; (ii) secure the return of the hostages which Hamas has
abducted, and (iii) collectively punish the civilian population of
Gaza, whom they perceived as a threat to Israel.
The
effects of the use of starvation as a method of warfare, together
with other attacks and collective punishment against the civilian
population of Gaza are acute, visible and widely known, and have been
confirmed by multiple witnesses interviewed by my Office, including
local and international medical doctors. They include malnutrition,
dehydration, profound suffering and an increasing number of deaths
among the Palestinian population, including babies, other children,
and women.
Famine
is present in some areas of Gaza and is imminent in other areas. As
UN Secretary-General António Guterres warned more than two months
ago, “1.1 million people in Gaza are facing catastrophic hunger –
the highest number of people ever recorded – anywhere, anytime”
as a result of an “entirely manmade disaster”. Today, my Office
seeks to charge two of those most responsible, NETANYAHU and GALLANT,
both as co-perpetrators and as superiors pursuant to Articles 25 and
28 of the Rome Statute.
Israel,
like all States, has a right to take action to defend its population.
That right, however, does not absolve Israel or any State of its
obligation to comply with international humanitarian law.
Notwithstanding any military goals they may have, the means Israel
chose to achieve them in Gaza – namely, intentionally causing
death, starvation, great suffering, and serious injury to body or
health of the civilian population – are criminal.
Since
last year, in Ramallah, in Cairo, in Israel and in Rafah, I have
consistently emphasised that international humanitarian law demands
that Israel take urgent action to immediately allow access to
humanitarian aid in Gaza at scale. I specifically underlined that
starvation as a method of war and the denial of humanitarian relief
constitute Rome Statute offences. I could not have been clearer.
As
I also repeatedly underlined in my public statements, those who do
not comply with the law should not complain later when my Office
takes action. That day has come.
In
presenting these applications for arrest warrants, my Office is
acting pursuant to its mandate under the Rome Statute. On 5 February
2021, Pre-Trial Chamber I decided that the Court can exercise its
criminal jurisdiction in the Situation in the State of Palestine and
that the territorial scope of this jurisdiction extends to Gaza and
the West Bank, including East Jerusalem. This mandate is ongoing and
includes the escalation of hostilities and violence since 7 October
2023. My Office also has jurisdiction over crimes committed by
nationals of States Parties and by the nationals of non-States
Parties on the territory of a State Party.
Today’s
applications are the outcome of an independent and impartial
investigation by my Office. Guided by our obligation to investigate
incriminating and exonerating evidence equally, my Office has worked
painstakingly to separate claims from facts and to soberly present
conclusions based on evidence to the Pre-Trial Chamber.
As
an additional safeguard, I have also been grateful for the advice of
a panel of experts in international law, an impartial group I
convened to support the evidence review and legal analysis in
relation to these arrest warrant applications. The Panel is composed
of experts of immense standing in international humanitarian law and
international criminal law, including Sir Adrian Fulford PC, former
Lord Justice of Appeal and former International Criminal Court Judge;
Baroness Helena Kennedy KC, President of the International Bar
Association’s Human Rights Institute; Elizabeth Wilmshurst CMG KC,
former Deputy Legal Adviser at the UK Foreign and Commonwealth
Office; Danny Friedman KC; and two of my Special Advisers – Amal
Clooney and His Excellency Judge Theodor Meron CMG. This independent
expert analysis has supported and strengthened the applications filed
today by my Office. I have also been grateful for the contributions
of a number of my other Special Advisers to this review, particularly
Adama Dieng and Professor Kevin Jon Heller.
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. Nothing can justify
wilfully depriving human beings, including so many women and
children, the basic necessities required for life. Nothing can
justify the taking of hostages or the targeting of civilians.
The
independent judges of the International Criminal Court are the sole
arbiters as to whether the necessary standard for the issuance of
warrants of arrest has been met. Should they grant my applications
and issue the requested warrants, I will then work closely with the
Registrar in all efforts to apprehend the named individuals. I count
on all States Parties to the Rome Statute to take these applications
and the subsequent judicial decision with the same seriousness they
have shown in other Situations, meeting their obligations under the
Statute. I also stand ready to work with non-States Parties in our
common pursuit of accountability.
It
is critical in this moment that my Office and all parts of the Court,
including its independent judges, are permitted to conduct their work
with full independence and impartiality. I insist that all attempts
to impede, intimidate or improperly influence the officials of this
Court must cease immediately. My Office will not hesitate to act
pursuant to article 70 of the Rome Statute if such conduct continues.
I
remain deeply concerned about ongoing allegations and emerging
evidence of international crimes occurring in Israel, Gaza and the
West Bank. Our investigation continues. My Office is advancing
multiple and interconnected additional lines of inquiry, including
concerning reports of sexual violence during the 7 October attacks,
and in relation to the large-scale bombing that has caused and
continues to cause so many civilian deaths, injuries, and suffering
in Gaza. I encourage those with relevant information to contact my
Office and to submit information via OTP Link.
My
Office will not hesitate to submit further applications for warrants
of arrest if and when we consider that the threshold of a realistic
prospect of conviction has been met. I renew my call for all parties
in the current conflict to comply with the law now.
I
also wish to emphasise that the principle of complementarity, which
is at the heart of the Rome Statute, will continue to be assessed by
my Office as we take action in relation to the above-listed alleged
crimes and alleged perpetrators and move forward with other lines of
inquiry. Complementarity, however, requires a deferral to national
authorities only when they engage in independent and impartial
judicial processes that do not shield suspects and are not a sham. It
requires thorough investigations at all levels addressing the
policies and actions underlying these applications.
Let
us today be clear on one core issue: if we do not demonstrate our
willingness to apply the law equally, if it is seen as being applied
selectively, we will be creating the conditions for its collapse. In
doing so, we will be loosening the remaining bonds that hold us
together, the stabilising connections between all communities and
individuals, the safety net to which all victims look in times of
suffering. This is the true risk we face in this moment.
Now,
more than ever, we must collectively demonstrate that international
humanitarian law, the foundational baseline for human conduct during
conflict, applies to all individuals and applies equally across the
situations addressed by my Office and the Court. This is how we will
prove, tangibly, that the lives of all human beings have equal value.
For
further details on "preliminary examinations" and
"situations and cases" before the Court, click here, and
here.
Source:
Office of the Prosecutor
~~~~~~~~
The State of Palestine is one of the 135 signatories to and 124 parties acceding to the Rome Statute of the International Criminal Court (1998).
On
1 January 2015, the Government of The State of Palestine lodged a
declaration under article 12(3) of the Rome Statute accepting the
jurisdiction of the International Criminal Court ("ICC")
over alleged crimes committed "in the occupied Palestinian
territory, including East Jerusalem, since June 13, 2014". On 2
January 2015, The State of Palestine acceded to the Rome Statute by
depositing its instrument of accession with the UN Secretary-General.
The Rome Statute entered into force for The State of Palestine on 1
April 2015. [International Criminal Court,
State of Palestine, ICC-01/18]
The State of Israel is also a signatory to the same Rome Statute (1998) signing on 31 December 2000. However, on 28 August 2002 Israel stated its intention not to become a party to the
treaty. A move which appeared to closely mirror the actions of the United States of America, which on
31 Dec 2000 signed the Rome
Statute then on 6 May 2002 stated its intention not to become a party to the
treaty.
The International Criminal Court has recognised jurisdiction in matters concerning (a) the crime of genocide; (b) crimes against humanity; (c) war crimes;
(d) the crime of aggression.
On 5 February 2021 the Court ruled that it had criminal jurisdiction to hear matters concerning the Situation in the State of Palestine and by extension may consider the actions State of Israel given that these actions occurred on the territories of a state party to the Rome Statute, that is the Gaza Strip, West Bank and East Jerusalem. Likewise having jurisdiction over the actions of the Islamic Resistance Movement as the de facto government of the Gaza Strip.
At this point in time the application for the five arrest warrants is before ICC Pre-Trial Chamber 1 (Judge
Iulia Motoc as Presiding Judge, with Judge Reine Alapini-Gansou &
Judge Nicolas Guillou). It appears that Chamber decisions are usually handed down within two months. However a decision can be delayed by up to twelve months.
Israel
has stated it will establish a special committee to fight the ICC
prosecutor’s efforts to secure a warrant, and also embark on a
diplomatic push against it [Nationwide News Pty Ltd, 21.05.24] and, although aware itself of "scores of specific incidents" alleged to be war crimes [Report of the Independent Task Force on the Application of National Security Memorandum-20 to Israel, 18 April 2024], the United States is outraged at the warrant application against the two "Israeli leaders" [Statement from President Joe Biden on the Warrant Applications by the International Criminal Court,
20 May 2024]
As a State Party to the Rome Statute of the International Criminal Court (1998) the Commonwealth of Australia is under a legal obligation to Article 86 General obligation to cooperate....cooperate
fully with the Court in its investigation and prosecution of crimes
within the jurisdiction of the Court,
and
refrain from Article 70 1. (d) Impeding, intimidating or corruptly
influencing an official of the Court for the purpose of forcing or
persuading the official not to perform, or to perform improperly, his
or her duties
and, 4. (a) Each State Party shall extend its
criminal laws penalizing offences against the integrity of its own
investigative or judicial process to offences against the administration
of justice referred to in this article, committed on its territory,
or by one of its nationals;
(b)
Upon request by the Court, whenever it deems it proper, the State
Party shall submit the case to its competent authorities for the
purpose of prosecution.
Those
authorities shall treat such cases with diligence and devote
sufficient resources to enable them to be conducted effectively;
(e)
Retaliating against an official of the Court on account of duties
performed by that
or another official.
[Excerpts from Articles 86 & 70, Rome
Statute of the International Criminal Court (1998)]
OPINION
MiddleEast Eye,
21 May 2024:
War
on Gaza: The ICC has suspended Israel's licence to kill
David
Hearst
For
76 years, Israel had a narrative more robust as a protective shield
than any Iron Dome.
For
the victims of the worst case of industrial killing in modern
history, self-determination for post-Holocaust Jewry was not merely a
necessity, this narrative went, it was a moral imperative. Any state
that emerged was immune from judgement, the story went. Israel was
beyond international law.
It
was allowed to have indeterminate borders. It was allowed to occupy.
It was allowed to settle the areas it occupied. It was allowed to
regularly attack its neighbours pre-emptively. It was allowed nuclear
weapons, outside the control of any regulatory authority.
It
could violently discriminate against its non-Jewish minority and
still be accepted into the family of democratic nations. It was not
just allowed to lay siege to Gaza and starve the territory’s
population for 16 years, it was assisted in this by the international
community.
Anyone
who rejected the credo that this violent state had a right to exist
faced political banishment.
Israel
was a “lifeboat” for Jews facing antisemitism throughout the
world. It was not the primary cause of waves of antisemitism. It
safeguarded Jews. It did not endanger them.
For
76 years, Israel literally had a licence to kill. Until Monday.
The
chief prosecutor of the International Criminal Court (ICC), Karim
Khan, did much more than apply for arrest warrants for Prime Minister
Benjamin Netanyahu and Defence Minister Yoav Gallant. The ICC
prosecutor punctured the myth that any Israeli leader, official or
soldier was beyond the reach of international law....
...the
pretrial chamber of three judges must only convince themselves on two
points - that there are reasonable grounds to believe that at least
one crime within the court’s jurisdiction has been committed, and
that the arrest of those named “appears necessary” to ensure they
appear at trial, do not endanger an investigation, and cannot
continue to perpetrate the same crime.
Considering
the bullying that the court itself has come under, with the US
threatening its members with sanctions, a third unwritten imperative will loom large in their
minds: the need to uphold the independence of the ICC.
If
they bow to this pressure, the ICC’s legitimacy will be finished -
and besides, the evidence for the seven charges is overwhelming.......
Read the full article at
https://www.middleeasteye.net/opinion/war-gaza-icc-has-suspended-israels-licence-kill
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