A Historic Step Towards Ending Seven Decades of Impunity
In a statement released today, Mwatana for Human Rights warmly welcomed the applications made by International Criminal Court (ICC) Prosecutor Karim Khan for the arrest warrants concerning the situation in the State of Palestine. The initial warrants target Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, holding them criminally responsible for war crimes and crimes against humanity committed by Israel in Gaza, Palestine, since October 8, 2023. These charges include using starvation as a method of warfare, willful killing, deliberately attacking civilians, genocide, persecution, and other inhumane acts.
The applications also call for arrest warrants of three Hamas leaders: Ismail Haniyeh, the head of Hamas’s political bureau; Yahya Sinwar, the head of Hamas in Gaza; and Mohammed Diab Ibrahim Al-Masri, the chief commander of Hamas’s military wing. They are being held criminally responsible for war crimes and crimes against humanity committed in Israeli settlements in the Gaza envelope area, in both Israel and the State of Palestine, on October 7, 2023. These crimes include willful killing, hostage-taking, torture, outrages upon personal dignity in the context of captivity, and other offenses.
Radhya Al-Mutawakel, Chairperson of Mwatana for Human Rights, stated, "This step reflects the courage of the International Criminal Court (ICC) Prosecutor, as well as the team of judges and investigators at the Court. It represents an unprecedented and historic first step towards ending the prevailing culture of impunity and affirms the equal value of all human lives without discrimination. This move restores the standing of international humanitarian law and the international justice system."
Al-Mutawakel added, "Over the 76 years of the Israeli-Palestinian conflict, each of its numerous rounds has witnessed violations, atrocities, and horrific crimes, including the most serious international crimes over the decades. However, this is the first time an international criminal investigation has been opened, and we are witnessing the initial signs of international judicial action to hold those responsible for these violations accountable. This effective move will contribute to enforcing respect for the principles of international humanitarian law and international human rights law in the context of conflicts by all parties without discrimination."
Mwatana for Human Rights called on all international actors, including states, organizations, human rights advocates, and activists, to support the efforts of the International Criminal Court (ICC) in pursuing accountability and ending impunity. Mwatana also urged these actors to bolster these efforts and take necessary measures to protect the ICC Prosecutor, his team, the Court’s judges, and their families from any retaliatory actions that may arise from fulfilling their roles in accordance with international laws and the Court’s mandate. Additionally, Mwatana emphasized the need to halt all forms of pressure and intimidation targeting the Prosecutor, investigators, staff, and judges.
Hamas has called on the International Criminal Court (ICC) to cancel all arrest warrants issued against its leaders, arguing that these warrants violate international treaties and UN resolutions. In a press statement, Hamas condemned what it described as "ICC Prosecutor Karim Khan's attempts to equate the victim with the executioner by applying for arrest warrants of three of its leaders." Hamas urged the Prosecutor to issue arrest warrants for "all war criminals among the Israeli occupation leaders, officers, and soldiers." The statement emphasized that the Prosecutor should target all Israeli officials who gave the orders and the soldiers who executed the crimes.
Adel Attia, the Palestinian Ambassador to the European Union, said, "The decision by the ICC Prosecutor marks a significant legal precedent, proving that international justice is applied equally to everyone." He added that the international judicial move "will send a clear message to the leaders of the Israeli occupation that the era of escaping accountability is over and that they must be held accountable for the crimes they have committed against the Palestinian people under occupation." Attia also criticized "placing the victim on an equal footing with the executioner."
Israeli Prime Minister Benjamin Netanyahu attacked the move by ICC Prosecutor Karim Khan, stating: "The outrageous comparison made by the ICC Prosecutor in The Hague between Israeli leaders and the heads of the terrorist organization Hamas is an indelible historical crime and a clear manifestation of anti-Semitism." Netanyahu described the ICC Prosecutor's initiative as "a scandal."
Israeli Finance Minister Bezalel Smotrich said, "We have not seen such a show of hypocrisy and hatred of Jews as that of The Hague Tribunal since Nazi propaganda." Smotrich continued, "These arrest warrants will be the last nail in the dismantling of this political and anti-Semitic court," adding that "The friends of Israel and the truly enlightened countries will not allow the court to continue to exist and operate."
The Speaker of the Israeli Parliament (Knesset), Amir Ohana, said the ICC "has proven to the world that it is not legitimate." He added that the court "is uncapable of differentiating between the aggressor and the defender, between a democracy that respects human rights to a terror organization dedicated to its destruction in the name of the ideals of radical Islam and murderous zealots – is a danger to humanity."
Former Israeli Prime Minister Naftali Bennett joined the Israeli officials' campaign against the International Criminal Court, stating, "The Prosecutor's application is a moment of shame for the ICC and the world community." Bennett accused the international legal action of providing "a huge boost to global Jihadi terror," urging respected countries to "stop funding the ICC."
Meanwhile, Israeli opposition leader Yair Lapid remarked, "The application is a complete moral failure, and we cannot accept the appalling comparison between Netanyahu and (Yahya) Sinwar," referring to the military leader of Hamas. He added, "We will not remain silent."
It is noteworthy that U.S. officials, including Senators, have previously warned the ICC Prosecutor against issuing arrest warrants for the Israeli Prime Minister and other Israeli officials. They threatened to impose heavy sanctions on him and his staff if he proceeded with such actions. In their letter to the Prosecutor, the Senators stated that taking such a step would not only threaten Israel's sovereignty but also that of the United States. Additionally, Israeli officials have threatened retaliation against the ICC, its officials, and their families should this decision be made. This threat is part of a dark legacy of the United States and Israel’s persistent attempts to undermine the Court's efforts to hold individuals accountable for war crimes, crimes against humanity, and genocide.
This position and the escalating tone contrast with an earlier stance from the Foreign Affairs Committee in both the U.S. Senate and House of Representatives in which members from both the Democratic and Republican parties welcomed the ICC's decisions, considering them "a powerful message to the world that there is a price to pay for committing such heinous crimes." They affirmed in their statement that "Congress will continue to support international efforts for accountability."
President Joe Biden, in a press statement, attacked the International Criminal Court's (ICC) equating of Israel and Hamas, describing the international legal move as "outrageous." Secretary of State Antony Blinken also expressed Washington's rejection of the ICC Prosecutor's announcement regarding Israel and Hamas. Blinken described the ICC's comparison of Israel and Hamas as "disgraceful" and claimed that the decision could undermine efforts to reach a hostage agreement and ceasefire in Gaza.
On May 3, 2024, the U.S. administration expressed its opposition to the International Criminal Court's investigations into the Israeli-Palestinian conflict. The White House justified this rejection by stating, "We do not believe the conflict falls within the Court's jurisdiction." The statement added, "We have been very clear about the ICC investigation; we do not support it and do not believe it is within the Court's purview."
The White House's stance contrasts with the Biden administration's previous welcome of the ICC arrest warrants issued in March 2023 against Russian President Vladimir Putin and one of his advisers for war crimes in Ukraine. In a statement, the Biden administration expressed support for the ICC's decisions, calling them "an essential step towards accountability for the atrocities committed by Russian forces in Ukraine." The statement, issued by the White House spokesperson, emphasized that "no one, including presidents, is above international law," and affirmed that the United States would continue to support the ICC's efforts.
The U.S. State Department also praised the ICC's decision, stating it sent a "clear message" that perpetrators of war crimes would not escape justice. American officials reiterated the U.S.'s commitment to international justice and the necessity of holding Russian leaders accountable for their actions in Ukraine. Secretary of State Antony Blinken said, "The ICC's decisions reaffirm that there are consequences for committing war crimes and crimes against humanity," and added, "The United States will work with its allies to ensure these decisions are implemented."
The U.S. Department of the Treasury indicated that it is considering imposing additional sanctions on Russia in light of the ICC's decisions. These sanctions will target individuals and entities involved in the crimes attributed to the Russian leadership. Meanwhile, the U.S. Department of Justice confirmed that it will fully cooperate with the ICC to execute arrest warrants issued against Putin and other Russian officials. It also stated that it will work with U.S. allies to ensure that the accused are brought to the court.
Commenting on the situation, Radhya Al-Mutawakel, Chairperson of Mwatana for Human Rights, said, "The repeated threats of retaliation against the ICC for fulfilling its essential duty to end impunity are, in themselves, a participation in achieving impunity and obstructing truth and justice." Al-Mutawakel added, "It is not surprising that Netanyahu and his government are attacking the ICC, especially as he is expected to be at the top of the list of Israeli leaders included in the court's arrest warrants. However, what is shocking and irresponsible are the positions taken by Israel's allies and supporters, primarily the United States, against the ICC's anticipated decisions regarding Israeli officials. This stance contrasts sharply with their support for the ICC's arrest warrants against Russian President Vladimir Putin and several other Russian officials for their alleged responsibility for committing war crimes in Ukraine."
Al-Mutawakel emphasized that "the repeated accusations of anti-Semitism by Benjamin Netanyahu, Israeli leaders, and their supporters against those calling for an end to the horrific crimes Israel continues to commit against Palestinian civilians are a gross insult to the victims of the Holocaust and a trivialization of the horrific crimes and immense suffering they endured." She added, "The lesson from the Holocaust is the international community's responsibility, and indeed that of all humanity, to act to protect civilians without discrimination. This includes protecting Palestinian civilians from genocide, war crimes, crimes against humanity, and other horrific crimes. It does not mean using the Holocaust and accusations of anti-Semitism as a perpetual green light for Israeli leaders to violate and trample on Palestinian civilians' rights under the pretext of self-defense."
Mwatana for Human Rights urged the ICC Prosecutor, his team of investigators, and the Court's judges to continue their brave and responsible efforts to issue additional arrest warrants. These should include more officials involved in the crimes and violations committed during the ongoing conflict in Gaza, the occupied Palestinian territories, and Israel, which have resulted in the deaths of over 35,000 Palestinians, including more than 130 journalists, and injuries to over 70,000 Palestinians since October 8, 2023. Additionally, the conflict has led to the widespread destruction of Palestinian civilian infrastructure in Gaza, including hospitals, medical facilities, schools, media offices, places of worship, residential buildings, shelters, displacement camps, and humanitarian organization premises.
Furthermore, Mwatana highlighted the Israeli attacks on humanitarian, relief, and medical personnel, as well as on vehicles transporting aid and essential goods, civilian infrastructure, and the prevention of humanitarian access. They also emphasized Israel's use of starvation as a weapon of war and its involvement in committing acts of genocide against the Palestinian people. The organization condemned the Israeli authorities' protection of widespread settler violence against Palestinians in the West Bank and Galilee, the seizure of large areas of Palestinian land and farms, the arbitrary detention of thousands of Palestinians, and the use of torture, ill-treatment, and other inhumane and degrading practices against thousands of detainees. These Israeli actions are part of a systematic pattern of violations aimed at forcibly displacing Palestinians from their homeland.
Mwatana also called for accountability for the violations committed against civilians during the Palestinian factions' attack on October 7, 2023, including the killing of civilians and taking civilian hostages, which fall under the Court's jurisdiction. The organization emphasized that arrest warrants should encompass all leaders involved in these violations, according to the different scopes and patterns of responsibility. This would enhance the ICC's efforts to end the culture of impunity and hold all individuals responsible for the violations accountable.
On Sunday evening, October 29, 2023, ICC Prosecutor Karim Khan announced in a press briefing broadcast from the Egyptian side of the Rafah border crossing, the opening of an investigation by the ICC Prosecutor's Office into war crimes, crimes against humanity, and other crimes committed in the State of Palestine and Israel, in accordance with its jurisdiction. This marks the first move by a court with international jurisdiction since the beginning of the Israeli-Palestinian conflict in 1947. This conflict, with its numerous paradoxes, has endured for as long as the United Nations Charter, the Universal Declaration of Human Rights, and international humanitarian law.
Jurisdiction of the International Criminal Court over the State of Palestine
Contrary to the statements made by the U.S. administration regarding the Court's jurisdiction, the State of Palestine has been under the jurisdiction of the International Criminal Court (ICC) since April 1, 2015. Palestine joined the Rome Statute on January 2, 2015, and its membership became effective upon depositing its instrument of accession with the UN Secretary-General. On January 7, 2015, the ICC announced its acceptance of Palestine's accession request, which was submitted to the Prosecutor for review.
Palestine's journey to join the Rome Statute began on January 22, 2009, following Israel's "Operation Cast Lead" in Gaza. At that time, Palestinian Minister of Justice Ali Khashan submitted a declaration under Article 12(3) of the Rome Statute, allowing the ICC jurisdiction retroactively to investigate crimes committed in Palestinian territories since July 1, 2002.
Under Article 15 of the Rome Statute, the Office of the Prosecutor (OTP) initiated an action plan to determine if there was a reasonable basis to proceed with an investigation. After three years, in April 2012, the OTP concluded that it could not proceed with the Palestinian request due to Palestine's status at the UN as a "non-member observer entity" rather than a state, thus precluding it from signing the Rome Statute or submitting a declaration under Article 12(3).
On November 29, 2012, the United Nations General Assembly adopted Resolution 67/19 regarding the status of Palestine at the UN, granting the Palestinian Authority the status of a "non-member observer state." However, this resolution does not have retroactive effect to validate the declaration accepting the ICC's jurisdiction submitted by the Palestinian Minister of Justice in 2009.
On September 2, 2014, ICC Prosecutor Fatou Bensouda issued a statement asserting that "everyone has the right to know the truth about the ICC's jurisdiction over Palestine," addressing rumors that the ICC was avoiding investigations into crimes committed in Gaza due to political pressure. The Guardian published an op-ed by Prosecutor Bensouda titled "The Truth About the ICC and Gaza," in which she clarified that the ICC could not investigate alleged war crimes in Palestine unless Palestine granted the Court jurisdiction over its territory.
On January 1, 2015, Palestine declared its acceptance of the ICC's jurisdiction starting from June 13, 2014, in accordance with Article 12(3) of the Rome Statute. On January 2, 2015, Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. On January 7, the ICC accepted the declaration and forwarded it to the ICC Prosecutor for consideration, with the declaration taking effect on April 1, 2015.
After receiving a valid declaration from the Palestinian government in accordance with Article 12(3) of the Rome Statute, Prosecutor Fatou Bensouda announced on January 16, 2015, the opening of a preliminary examination of the situation in Palestine under Regulation 25(1)(c) of the Office of the Prosecutor. This examination aimed to determine whether there was a reasonable basis to proceed with an investigation into alleged crimes committed in the Palestinian territories. Concurrent with the announcement of this preliminary examination, the Palestinian government submitted its first referral to the ICC on June 25, 2015, concerning crimes allegedly committed by Israel in the occupied West Bank and during the Gaza War of 2014. However, this examination did not result in a decision to open an investigation at that time.
On May 22, 2018, Palestinian Foreign Minister Riyad Al-Maliki submitted a referral to the Office of the Prosecutor at the International Criminal Court (ICC) regarding the "situation in Palestine," in accordance with Article 13(a) concerning the exercise of jurisdiction and Article 14 concerning the "referral of a situation by a State Party." On May 24, 2018, the ICC Presidency assigned the situation in Palestine to the Pre-Trial Chamber with immediate effect.
On December 20, 2019, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a press statement following the conclusion of the preliminary examination of the situation in Palestine. In it, she declared that all legal criteria required by the Rome Statute for opening an investigation into the situation in Palestine had been met. However, she noted in her statement the existence of a dispute regarding the territory where the investigation could take place. Therefore, she submitted a request to the Pre-Trial Chamber I to issue a decision regarding the territorial jurisdiction of the International Criminal Court, which was resubmitted on January 22, 2020. On January 28, 2020, Pre-Trial Chamber I of the International Criminal Court issued an order inviting Palestine, Israel, and interested states to submit their observations.
On February 5, 2021, Pre-Trial Chamber I made a majority decision, despite Judge Péter Kovács's objection, to extend the jurisdiction of the International Criminal Court in Palestine to include the territories occupied by Israel since 1967, namely Gaza, the West Bank, including East Jerusalem, thus defining the geographical scope of the International Criminal Court's jurisdiction.
References:
The U.S. administration stances regarding the International Criminal Court and the arrest warrants for Russian President Vladimir Putin
https://www.nytimes.com/2023/03/17/world/europe/icc-putin-ukraine-war.html
https://www.nytimes.com/2023/07/26/us/politics/biden-russia-war-crimes-hague.html
https://www.bbc.com/news/world-europe-64998165
https://www.nytimes.com/2023/03/17/world/europe/icc-putin-ukraine-war.html
https://www.nytimes.com/2023/08/17/world/europe/biden-administration-icc-arrest-warrants-russia.html
https://www.state.gov/briefings/department-press-briefing-august-25-2023/
https://www.cbsnews.com/news/face-the-nation-full-episode-august-31-2023/
https://www.nytimes.com/2023/09/05/world/americas/white-house-icc-russia-leaders.html
https://twitter.com/POTUS/status/1594321456789012480
