ICC Prosecutor requests arrest warrant against Netanyahu and Haniyeh

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ICC Prosecutor Karim A.A. Khan KC filed an application for arrest warrants before the Pre-Trial Chamber I of the International Criminal Court (ICC).

The request names 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) for the following war crimes:

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.

It also names Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel, for the following war crimes:

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).

Let us first emphasise that, unlike many in the media reported, no arrest warrants have been issued and no one has been indicted yet. It is just a ‘request’ for arrest warrants to be issued.

Next, let us look at the, in my view most important, question of ‘jurisdiction’. Thus the ICC have jurisdiction at all over Israel (which is a state) and/or Palestine (which is not a state).

Here is, what the ICC itself says about its own jurisdiction:

The Court may exercise jurisdiction in a situation where genocide, crimes against humanity or war crimes were committed on or after 1 July 2002 and:

the crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court; or

the crimes were referred to the ICC Prosecutor by the United Nations Security Council (UNSC) pursuant to a resolution adopted under chapter VII of the UN charter.

As of 17 July 2018, a situation in which an act of aggression would appear to have occurred could be referred to the Court by the Security Council, acting under Chapter VII of the United Nations Charter, irrespective as to whether it involves States Parties or non-States Parties.

In the absence of a UNSC referral of an act of aggression, the Prosecutor may initiate an investigation on her own initiative or upon request from a State Party. The Prosecutor shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. Where no such determination has been made within six months after the date of notification to the UNSC by the Prosecutor of the situation, the Prosecutor may nonetheless proceed with the investigation, provided that the Pre-Trial Division has authorised the commencement of the investigation. Also, under these circumstances, the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.
ICC – How the Court works (version as of 2024-05-21)

We will now verify that Israel is ‘state parties’ to the “Rome Statute”. The list is also on the ICC website, and as you can verify yourself, Israel is not on the list. However, you will find a ‘State of Palestine’ in that list, which is a member since June 2014.
There was also no “referral of the UN Security Council” regarding nor has the UN Security determined, that “an aggression took place”.
So, in my opinion, the ICC does not have jurisdiction to issue arrest warrants against Israel, just as it has no jurisdiction over Russia, the People’s Republic of China or even the United States.
Assuming, we concede that Palestine is indeed a state in the legal sense (which I personally don’t agree with), it would mean, that Palestine (i.e. Gaza) and Palestine alone is bound by the “Rome Statute” and thus arrest warrants against the Hamas leadership, which constitutes the de facto but not de jure government of Gaza.
I am curious to learn how the ICC will weasel itself around its lack of jurisdiction. It has done so before, in the case of an arrest warrant against the President of the Russian Federation, which is also an act ‘ultra vires’, outside its powers.