Today was a very grim day in the history of the State of Israel. Prosecutors at the International Criminal Court (ICCC) are recommending Prime Minister Netanyahu and Defense Minister Gallant along with Yahya Sinwar (Head of the Islamic Resistance Movement (“Hamas”), Mohammed Diab Ibrahim al-Masri, (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail Haniyeh (Head of Hamas Political Bureau) be arrested and brought to court for war crimes and crimes against humanity.

While President Biden has expressed opposition to this move at the ICC, he made himself clear in the days after October 7, 2023 regarding Israel’s international obligations. He said that he had spoken with Netanyahu during the days after the Hamas assault, supported the right of Israel to defend itself against Hamas. But President Biden warned that the difference between a democratic country and a terrorist organization is that democratic nations are expected to conduct war under rules of international law. In the end, Netanyahu was the one who brought this terrible onus upon himself and upon the country.

It would be remiss, however, not to note that the charges levelled against Israel and against Hamas are not, in fact, equivalent.

The prosecution recommends charging Israel with crimes of omission: withholding food, water, electricity, and medicine. These are crimes that can be undone. The prosecutors are not recommending (at least not for now) Israel being charged with disproportionate use of force, killing Palestinian civilians, including old people, women, and children in the conduct of the war.

“[Crimes] 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.”

Hamas is charged with crimes of commission: acts of murder, sexual assault. These cannot be undone.

“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.”

The prosecutors recommending charges only against Israeli political leadership. To this date, not the IDF Chief of Staff and officers.

“The prosecutors recommends prosecuting Hamas military and political heads.”

The prosecutors recognize Israel having the right to defend itself against Hamas under rules of international law set by the Rome Statute. The prosecutors extend no such recognition (e.g rifght to resist occupation, etc.) to Hamas.

“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.”

The prosecutor extends sympathy the victims in Israel.

“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.”

The prosecutor concludes

“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 willfully 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.”

You can read the entire statement here.

The statement by the ICC prosecutors is based on the Rome Statute and its articles which you can read here.

The simple bottom line

–The occupation does not justify the indiscriminate slaughter, sexual assault and abduction of civilians in Israel by Hamas.

–The right to defend its people does not justify Israel starving Palestinians in Gaza.

UPDATE November 2024:

On the surface, there is nothing in this summary from the court (the Situation in the State of Palestine) to challenge the analysis above re: the specific crimes which the political leadership of Israel are accused of committing, now that the formal warrant for their arrest has been issued. The crimes are based on Israel relate to “murder” and “persecution” in refusing civilians in Gaza humanitarian assistance and care (food and medicine) in the aftermath of the main fighting. The possibility of a charge of genocide is also directly implied.

Most unsettling is the closing paragraph of the section on “Alleged Crimes.” It reads: Finally, the Chamber assessed that there are reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza. In this regard, the Chamber found that the material provided by the Prosecution only allowed it to make findings on two incidents that qualified as attacks that were intentionally directed against civilians. Reasonable grounds to believe exist that 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.”

The implication is that the ICC knows of evidence pointing to the failure by Netanyahu and Gallant to prevent or limit direct and systematic attacks by IDF personnel against Palestinian civilians in Gaza over the course of the war or to submit these matters to competent disciplinary authorities.

The warrants are a can of worms. Amos Harel at Ha’aretz has analysis detailing the possibility of wide repercussions. These include the following. “The ICC’s decision is liable to create an opening for a weapons embargo by additional Western countries, which until now have made do with more moderate measures against Israel. It could give a tail wind to many criminal complaints and investigations against IDF soldiers and commanders that are being conducted in numerous countries. It’s also a reminder that another focus of the criminal investigation is the goings-on in the West Bank, with an emphasis on the settlements.”

Not unrelated to the ICC proceedings, Harel goes on to report on “a whole slew of serious problems [in the IDF]: systematic breaches of discipline…lapses in orderly reporting, unnecessarily endangering soldiers and, as usual, ideological flirting with the settlers.”

But for now, it’s hard to see what justifies Israeli or anti-Israeli claims re: scope of ICC warrant. Is the warrant anti-war? The main body focuses on starvation as a weapon of war. Does the summary of the ICC warrant say anything re: conduct of actual fighting against legitimate military targets (intense-destructive urban war, “collateral damage,” disproportionate civilian casualties)?Does ICC warrant say anything re: conduct of actual fighting against legit military targets (intense-destructive urban war, disproportionate civilian casualties)? Eliav Lieblich makes this point here at Twitter.