The ICC’s Unsurprising Decision on Arrest Warrants for Netanyahu, Gallant, and Deif

On May 20, the ICC prosecutor asked a Pre-Trial Chamber (PTC) of the court to issue arrest warrants for three senior Hamas officials and two senior Israeli officials, including Israeli Prime Minister Benjamin Netanyahu and Yoav Gallant, who was defense minister at the time of the request. This was the third time the ICC was asked to issue a warrant for a sitting head of state. (The PTC issued the first in 2009 against Sudanese President Omar al-Bashir and the second in 2023 against Russian President Vladimir Putin.) 

Under Article 58(1) of the Rome Statute—the treaty that created the court—a Pre-Trial Chamber can issue an arrest warrant if it finds that: 

(1) there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (2) the arrest of the person appears necessary to ensure the person’s appearance at trial; to ensure that the person does not obstruct or endanger the investigation or the court proceedings; or, where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 

On Nov. 21, the Pre-Trial Chamber issued warrants for the two Israeli suspects and the one Palestinian suspect, Mohammed Diab Ibrahim Al-Masri (also known as Deif), whose death has been reported but not yet confirmed. (Applications for the two other warrants were withdrawn earlier this year after the deaths of Yahya Sinwar and Ismail Haniyeh were confirmed.)

The six-month interval between the applications and the Pre-Trial Chamber’s decision drew criticism from some. The PTC allowed dozens of states, organizations, and individuals to file amicus curiae briefs on a range of issues relating to the prosecutor’s applications. (In 2021, a PTC had also allowed broad amicus participation in response to Prosecutor Fatou Bensouda’s request to confirm that the ICC could assert jurisdiction over the “Situation in the State of Palestine.”) Threshold issues addressed in the briefing included whether Palestine qualifies as a state entitled to confer jurisdiction on the ICC to begin with; whether the Oslo Accords, which circumscribe Palestine’s authority to exercise criminal jurisdiction over Israeli nationals, prevent the ICC from exercising such jurisdiction; and whether Israel was given sufficient opportunity to pursue its own criminal investigations under the ICC’s complementarity regime, which prioritizes genuine domestic investigations over international proceedings. The amici included Sen. Lindsey Graham (R-S.C.), who praised the ICC’s arrest warrant against Putin but warned that the ICC’s legitimacy would be undermined by issuing arrest warrants against Netanyahu and Gallant—a criticism he later repeated on X.

Although the wisdom of the prosecutor’s decision to seek arrest warrants—and to do so in such a public manner—can reasonably be debated, it is not surprising that the PTC concluded there was a legal basis to issue them once requested. The crux of its decision required evaluating whether the evidence presented by the prosecutor provided “reasonable grounds to believe” that the individual suspects were responsible for certain enumerated international crimes. Although the PTC declined to make this finding with respect to all the alleged crimes, it would have been shocking had it found no reasonable grounds to issue warrants for at least some charges, given the obvious and continuing failures to minimize civilian harm and suffering. 

The Pre-Trial Chamber’s Rulings on Threshold Objections

ICC Prosecutor Karim Khan is not afraid of the spotlight. Arguably, he seeks it, as evidenced by his decision to seek an arrest warrant for Putin in the midst of intense international discussions about how to ensure postconflict accountability for Putin’s aggression in Ukraine. The ICC’s Office of Public Defense Counsel (OPCD), which is charged with supporting the rights of defendants, has pointed out that it was highly unusual for Khan to announce publicly that he was seeking arrest warrants for Hamas and Israeli leaders before such warrants were issued. Although ICC suspects have the right to challenge jurisdiction in a particular case under Article 19(2), they do not have standing at the Article 58 arrest warrant stage. Like grand jury proceedings in the United States, proceedings involving requests for arrest warrants are conducted ex parte, without the suspect present.

The prosecutor’s applications, and the arrest warrants themselves, are still classified as “secret” by the court “in order to protect witnesses and to safeguard the conduct of the investigations.” However, the PTC decided to release certain information “since conduct similar to that addressed in the warrant of arrest appears to be ongoing” and because the PTC considered it “to be in the interest of victims and their families that they are made aware of the warrants’ existence.”

In addition, perhaps partly in response to the OPCD’s concerns about prejudicial asymmetries in publicity and information, the ICC published two PTC decisions in conjunction with its issuance of the warrants. (The composition of the three-member PTC changed recently when one member from Romania stepped down for health reasons and was replaced by a new member from Slovenia.) One decision rejected Israel’s jurisdictional challenge as premature, because the PTC had not yet issued any arrest warrants for Israeli nationals. The other decision rejected Israel’s contention that it had not been properly notified of the scope of the investigation under Article 18 of the Rome Statute. The PTC found that Israel had been notified at the outset of the investigation in 2021 and that no additional notification was required after the events of October 2023. It emphasized that this conclusion was without prejudice to Israel’s ability to challenge the admissibility of a particular case “‘on the ground that [Israel] is investigating or prosecuting or has investigated or prosecuted’ the respective case.” A Trial Chamber could revisit the Pre-Trial Chamber’s disposition of these issues after charges have been confirmed against a defendant who is in custody (under Article 19(6)), and an Appeals Chamber could do the same (under Article 82). The prosecutor emphasized in his public statement that “the door to complementarity continues to remain open,” referring to the Rome Statute’s requirement that the ICC defer to genuine domestic proceedings. As long as Netanyahu’s coalition remains in power, it is unlikely that Israel will hold such proceedings, even though Israel’s attorney general has committed to do so. For one thing, the attorney general—who is not a political appointee—is under attack by Netanyahu and members of his government. For another, attempts to hold soldiers legally accountable for abuses have been derided as unpatriotic in a time of national emergency. Such attempts have also been documented as inadequate. (The U.S. Department of Justice has also faced internal criticism for reportedly uneven allocation of resources to investigating alleged crimes by Russia and Hamas compared to those by Israel.) It is well established under international law that having a just cause for war does not absolve any party to a conflict of the obligation to comply with laws governing the conduct of hostilities.

The Substantive Charges Against Deif

As indicated above, the ICC prosecutor’s May 20 request for arrest warrants involved three senior Hamas officials and two senior Israeli officials. The prosecutor has not yet withdrawn its request for a warrant for Deif, since his death has not been confirmed, even though he was likely killed by an Israeli air strike. The public announcement of the warrant against Deif indicated that: 

The Chamber found reasonable grounds to believe that Mr Deif, born in 1965, the highest commander of the military wing of Hamas (known as the al-Qassam Brigades) at the time of the alleged conduct, is responsible for the crimes against humanity of murder; extermination; torture; and rape and other form of sexual violence; as well as the war crimes of murder, cruel treatment, torture; taking hostages; outrages upon personal dignity; and rape and other form of sexual violence.

According to the PTC, these acts qualify as war crimes because they were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas. They qualify as crimes against humanity because they were committed as “part of a widespread and systematic attack directed by Hamas and other armed groups against the civilian population of Israel.” The factual basis for these findings has been well documented. The prosecutor can still request (and has perhaps already requested) additional warrants related to Hamas’s past and ongoing conduct.

The Substantive Charges Against Netanyahu and Gallant

The public announcement of the warrants against Netanyahu and Gallant did not distinguish between the two officials. The PTC found reasonable grounds to believe the following:

• War crime of using starvation as a method of warfare: Netanyahu and Gallant “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024.” Moreover, “no clear military need or other justification under international humanitarian law could be identified for the restrictions placed on access for humanitarian relief operations,” especially considering “the prolonged period of deprivation and Mr Netanyahu’s statement connecting the halt in the essential goods and humanitarian aid with the goals of war.” 

• Crime against humanity of murder: “[T]he lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.” Nonetheless, the chamber stopped short of finding based on the available evidence that all required elements of the crime against humanity of extermination were also met. 

• Crime against humanity of inhumane acts: “[B]y intentionally limiting or preventing medical supplies and medicine from getting into Gaza, in particular anaesthetics and anaesthesia machines, the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment. Doctors were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics, and/or were forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering.”

• Crime against humanity of persecution: “[T]he abovementioned conduct deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and … the population was targeted based on political and/or national grounds.”

• War crime of intentionally directing attacks against the civilian population of Gaza: “[T]he material provided by the Prosecution only allowed [the PTC] to make findings on two incidents that qualified as attacks that were intentionally directed against civilians. … Mr Netanyahu and Mr Gallant, despite having measures available to them to prevent or repress the commission of crimes or ensure the submittal of the matter to the competent authorities, failed to do so.”

Like the Hamas warrants, the Israeli warrants involve ongoing conduct. The prosecutor can request warrants for additional suspects and on additional charges. Because the ICC does not conduct trial in absentia, there will not be further proceedings on the charges contained in these warrants unless and until the ICC obtains custody of a charged individual.

What Happens Next?

The warrants will not prompt Israel to suspend its military campaign, nor will they force Hamas and other groups to release the remaining hostages. They will, however, make Netanyahu and Gallant (and any other individuals potentially subject to charges) think twice before traveling to countries that are parties to the Rome Statute. Moreover, ICC warrants do not have an expiry date. Some Rome Statute parties have ignored their obligations to execute arrest warrants, including South Africa, which failed to arrest Sudanese President Omar al-Bashir in 2015, and which reportedly asked Putin to refrain from visiting last summer for the BRICS summit. (Although South Africa has attempted to withdraw from the ICC in the past, it lauded the recent arrest warrants as showing that “[n]o individual, government official, or even a nation-state is considered to be above the rules established by international laws and conventions.”) Unless a regime change in Israel enables a genuine investigation, Netanyahu and Gallant might well become “fugitives from the international rule of law.” The PTC’s findings might also bolster efforts in some countries to block the transfer of arms to Israel, or at least to restrict transfers to defensive rather than offensive weapons.

Despite Netanyahu’s unpopularity in Israel, and despite the public record of catastrophic harm to civilians in Gaza, the warrants galvanized internal unity in the face of a perceived “reward for terrorism,” to quote opposition leader Yair Lapid. Predictably, Netanyahu painted himself as a victim and dismissed the decision as “antisemitic” and tantamount to “a modern Dreyfus trial.” Yet the charges for which the Pre-Trial Chamber found “reasonable grounds” on which to issue the warrants are a far cry from the false charge of espionage against Captain Dreyfus. There is no basis to suggest that Netanyahu’s or Gallant’s Jewish ethnicity played any role whatsoever in the PTC’s analysis, just as there is no basis to think that the charges against Deif were a product of anti-Muslim bias. Attempts to delegitimize the warrants on the basis of the ICC prosecutor’s alleged sexual misconduct are also misguided, even though the allegations clearly merit a genuinely independent external investigation.

Most reactions to the arrest warrants—both positive and negative—focus on the warrants for Israeli officials. That said, it would be a mistake to overlook the PTC’s assessment that the Oct. 7 attacks, and the ongoing detention and maltreatment of hostages, are international crimes. This characterization should give pause to those who glorify hostage-taking and violence against civilians (including against civilians in Gaza) perpetrated by Hamas and other jihadist groups. The most prominent Islamic scholar in Gaza recently issued a detailed fatwa criticizing Hamas for “violating Islamic principles governing jihad.” Attacks on civilians should be condemned in any conflict, regardless of which side perpetrates them. 

The Haaretz newspaper’s editorial board described the ICC’s decision as an “unprecedented moral nadir” for Israel. (Netanyahu responded to Haaretz’s coverage of the war by sanctioning the newspaper.) Hungary’s Victor Orban greeted news of the ICC warrant with an invitation for Netanyahu to visit, deepening cleavages between European countries committed to the rule of law and those challenging the “liberal international order.” Absent a change in leadership, Israel’s international isolation from that order will continue to deepen. Even if the Israeli government changes course (which is highly unlikely, especially given the results of the recent U.S. presidential election), the damage to Israel’s standing and reputation—with ripple effects on Jews in the diaspora—will take decades to repair. Meanwhile, the human toll is irreversible, and rebuilding Gaza will take decades, if not centuries. 

Within Israel, the arrest warrant enables Netanyahu to play the victim card and to convince Israelis that regard for the views of the international community and international law is tantamount to self-destruction. The far-right members of his coalition need no convincing. Gallant, who is widely viewed as more moderate, took the public position recently that Israel had achieved its war aims in Gaza and that it should accept a hostages-for-peace deal. Netanyahu fired him. Meanwhile, Netanyahu still faces trial in Israel on charges of bribery, fraud, and breach of trust charges. It would be a shame if the ICC prosecutor’s decision to seek a warrant against another sitting head of state allows Netanyahu to shift the narrative away from his own wrongdoing and to discredit international law, rather than helping to catalyze domestic opposition to his destructive and self-serving policies. 

– Chimène Keitner is Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. She is a leading authority on international law and civil litigation, and served as the 27th Counselor on International Law in the U.S. Department of State. Published courtesy of Lawfare.