Israel has been warning for several weeks that the International Criminal Court was preparing to issue arrest warrants against its senior officials over the conduct of the war with Hamas in Gaza.
But even so, the announcement on Monday by the court’s prosecutor Karim Khan that he was seeking warrants against Israeli Prime Minister Benjamin Netanyahu and defence minister Yoav Gallant — as well as three Hamas leaders — was a political bombshell.
“This is a huge deal,” said Sheila Paylan, an expert on international law and human rights. “This is the first time the court has been asked to issue an arrest warrant against the head of a state supported by the west.”
The move marks a dramatic escalation of the legal fallout from the war in Gaza, and comes as Israel is under intense international pressure over its seven-month assault, which has killed 35,000 people, according to Palestinian officials, and left the enclave in a humanitarian crisis. At the same time Israel is also facing separate genocide accusations — charges it vehemently denies — at the UN’s top court, the International Court of Justice.
Khan on Monday justified his request for warrants for Netanyahu and Gallant — as well as three Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh — saying he had “reasonable grounds to believe” they bore “criminal responsibility” for alleged war crimes and crimes against humanity.
In the case of the three Hamas leaders, Khan cited their alleged responsibility for crimes of extermination and murder, hostage-taking, rape and other acts of sexual violence and torture committed by Hamas, which triggered the war with its October 7 assault on Israel, during which militants killed 1,200 people, and took 250 hostage, according to Israel.
In the case of Netanyahu and Gallant, he cited their alleged responsibility for using starvation of civilians as a method of warfare, after Israel imposed what Gallant called a “complete siege” on Gaza in the early days of the war. He also cited intentionally directing attacks against a civilian population, and “extermination and/or murder . . . as a crime against humanity”.
“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,” Khan said. “These crimes, in our assessment, continue to this day.”
In Israel, the initial reaction to the move was outrage. Figures from across the political spectrum — including opposition leaders such as Benny Gantz, who on Saturday threatened to quit Netanyahu’s coalition due to disagreements over the war — condemned Khan for his move.
Yair Lapid, head of the largest opposition party Yesh Atid, accused Khan of “complete moral failure” and said it was “outrageous” to draw a comparison between the two Israeli officials and the three Hamas militant leaders.
Ultranationalist finance minister Bezalel Smotrich called the move a “show of hypocrisy and Jew-hatred . . . we have not seen since Nazi propaganda”.
However, analysts said that if the court did decide to grant the warrants the implications could be far-reaching, both for Israel’s leaders and the country’s diplomatic standing.
For Netanyahu and Gallant, the issuing of warrants would mean they would risk arrest by visiting any of the ICC’s 124 member countries — which include the UK, most European and Latin American countries, as well as numerous states in Africa and Asia.
The symbolism of such a move would be damaging: Netanyahu and Gallant would be put in the same group as despots such as Russia’s Vladimir Putin, Sudan’s Omar al-Bashir and the late Libyan leader Muammer Gaddafi.
But legal experts said that there could also be practical consequences, with the warrants potentially affecting support that other countries were willing to provide to Israel while the war in Gaza continued.
“The implications for Israel could be really dramatic,” said Eran Shamir-Borer, head of the Israel Democracy Institute’s centre for national security and democracy, and a former head of the international law department in the Israel Defense Forces.
“There are a number of countries such as the UK, the Netherlands, the US and Denmark, where there are pending cases . . . against local authorities not to sell arms to Israel. This might have an impact on their decisions.”
That question is likely to be particularly acute for the US administration of Joe Biden, which has been Israel’s main international supplier of weapons throughout the war. The White House showed enthusiasm for the ICC’s warrant against Putin, despite not recognising the court, while opposing the issuing of warrants against Israeli officials.
For the court too, there is much at stake. After Khan’s decision, politicians in Israel and the US accused the court of overstepping its powers and allowing itself to become politicised. But as Khan unveiled his requests, he insisted that not taking action would have been an even greater risk — a nod to the accusations of bias that the ICC has faced for concentrating on cases from Africa, Russia and Serbia.
“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,” he said.
International humanitarian law, he added, “applies to all individuals and applies equally”.
