UN Criminal Court: “Regardless of any military targets, Israel's means are criminal”
by Karim Khan
[This article posted on 5/21/2024 is translated from the German on the Internet, https://www.telepolis.de/features/UN-Strafgerichtshof-Ungeachtet-etwaiger-militaerischer-Ziele-sind-die-Mittel-Israels-kriminell-9724991.html?seite=all.]
Insists on the universal validity of the Rome Statute: ICC Chief Prosecutor Khan.
The UN court's indictment of Hamas and Israel is causing a furor. The content is hardly the issue. Telepolis documents the chief prosecutor's statement in German.
On the basis of the evidence collected and examined by my Office, I have sufficient grounds to believe that Yahya Sinwar, head of Hamas in the Gaza Strip, Mohammed Diab Ibrahim al-Masri, better known as Seif, commander-in-chief of the military wing of Hamas and the military wing of Hamas, known as the Al-Qassam Brigades, and Ismail Haniyya, Head of the Political Bureau of Hamas, bear criminal responsibility for the following war crimes and crimes against humanity committed in the territory of Israel and the State of Palestine, in the Gaza Strip, from October 7, 2023:
Extermination as a crime against humanity under Article 7(1)(b) of the Rome Statute;
murder as a crime against humanity under Article 7(1)(a) and as a war crime under Article 8(2)(c)(i);
taking of hostages as a war crime under Article 8(2)(c)(iii);
Rape and other acts of sexual violence as a crime against humanity under Article 7(1)(g) and also as a war crime under Article 8(2)(e)(vi) in conjunction with detention;
torture as a crime against humanity under Article 7(1)(f) and as a war crime under Article 8(2)(c)(i) in conjunction with detention;
Other inhumane acts as crimes against humanity under Article 7(1)(k) in conjunction with detention;
cruel treatment as a war crime in accordance with Article 8, paragraph 2, letter c, point i, in conjunction with detention; and
violation of personal dignity as a war crime in violation of Article 8, paragraph 2, letter c), point ii) in conjunction with detention.
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War crimes in the conflict between Israel and Palestine
My office takes the view that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine and a parallel non-international armed conflict between Israel and Hamas.
We are convinced that the crimes against humanity alleged in these applications were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups as part of their organizational policy. In our opinion, some of these crimes are still continuing today.
Hamas leaders indicted as criminally responsible
My Office is of the view that there are reasonable grounds to believe that Sinwar, Deif and Haniyya are criminally responsible for the killing of hundreds of Israeli civilians in attacks by Hamas, in particular its military wing, the al-Qassam Brigades, and other armed groups on October 7, 2023, as well as for the abduction of at least 245 hostages.
As part of our investigation, my office has interviewed victims and survivors, including former hostages and eyewitnesses from six key attack sites: Kfar Aza, Holit, the site of the Supernova music festival, Be'eri, Nir Oz and Nahal Oz.
The investigation is also based on evidence such as video surveillance recordings, authenticated audio, photo and video material, statements by Hamas members, including the aforementioned alleged perpetrators, and expert testimony.
Crimes planned and instigated
My Office considers that these individuals planned and instigated the commission of the crimes on October 7, 2023, and acknowledged their responsibility for these crimes through their own actions, including personal visits to the hostages shortly after their abduction.
We submit that these crimes could not have been committed without their actions. They are charged as both accomplices and superiors under 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 the Supernova music festival in Re'im, I saw the devastating scenes of these attacks and the profound impact of the unscrupulous crimes charged in the applications filed today.
“A family's love abused for calculated cruelty”
In conversations with survivors, I learned how the love of a family, the deepest bonds between parent and child, were perverted into immeasurable pain by calculated cruelty and extreme callousness. These acts must be held accountable.
My office also believes that there are reasonable grounds to believe that the hostages abducted from Israel were held in inhumane conditions and that some of them were subjected to sexual violence, including rape, during their captivity.
The ICC's evidence against Hamas
We have reached this conclusion based on medical records, video and documentary material from that period, as well as interviews with victims and survivors. My Office continues to investigate reports of sexual violence that occurred on October 7.
I would like to express my gratitude to the survivors and families of the victims of the 7 October attacks for their courage in bringing their reports to my Office. We remain focused on deepening our investigation into all crimes committed in the context of these attacks and will continue to work with all partners to ensure that justice is done.
I reiterate my call for the immediate release of all hostages abducted in Israel and their safe return to their families. This is a fundamental requirement of international humanitarian law.
ICC on the indictment of Benjamin Netanyahu and Yoav Gallant
On the basis of the evidence collected and examined by my Office, I have reasonable grounds to believe that Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Minister of Defense of Israel, bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza Strip) from at least 8 October 2023:
The allegations according to the Rome Statute
starving civilians as a method of warfare as a war crime under Article 8(2)(b)(xxv) of the Statute;
wilfully causing great suffering or serious injury to body or health as a war crime in violation of Article 8(2)(a)(iii) or cruel treatment as a war crime in violation of Article 8(2)(c)(i);
murder as a war crime in violation of Article 8(2)(a)(i) or murder as a war crime in violation of Article 8(2)(c)(i);
Intentionally directing attacks against the civilian population as a war crime under Article 8(2)(b)(i) or Article 8(2)(e)(i);
extermination and/or murder as crimes against humanity under Article 7(1)(b) and Article 7(1)(a), including in conjunction with death by starvation;
persecution as a crime against humanity under Article 7(1)(h);
other inhumane acts as crimes against humanity under Article 7(1)(k).
“Crimes against humanity”
My office is of the opinion that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, as well as a parallel non-international armed conflict between Israel and Hamas (together with other Palestinian armed groups).
We are convinced that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population as part of state policy. In our opinion, these crimes continue to this day.
“ ... deprived of the means indispensable for human survival”
My office believes that the evidence we have gathered, including interviews with survivors and eyewitnesses, authenticated video, photographic and audio material, satellite images and statements from the alleged perpetrators, shows that Israel has deliberately and systematically deprived the civilian population in all parts of the Gaza Strip of the means essential to human survival.
This was done by imposing a total siege on the Gaza Strip, which consisted of completely closing the three border crossings of Rafah, Kerem Shalom and Erez for a long period of time from October 8, 2023, and then arbitrarily restricting the transfer of essential goods – including food and medicines – through the border crossings after they had been reopened.
Water supply interrupted
The siege also included the disruption of the cross-border water supply from Israel to Gaza – the main source of clean water for the residents of the Gaza Strip – for an extended period of time from October 9, 2023, and the disruption and obstruction of the electricity supply from at least October 8, 2023, to the present day.
This was done in conjunction with other attacks on the civilian population, including those queuing for food, the obstruction of aid deliveries by humanitarian organizations, and attacks on and killing of aid workers, which forced many organizations to cease or reduce their activities in Gaza.
My office believes that these acts were committed as part of a joint plan to use starvation as a method of warfare and other acts of violence against the civilian population of the Gaza Strip in order to (i) eliminate Hamas, (ii) ensure the return of the hostages kidnapped by Hamas, and (iii) punish the civilian population of the Gaza Strip collectively, as it was considered a threat to Israel.
“Hunger as a method of warfare”
The effects of the use of hunger as a method of warfare, together with other attacks and collective punishments against the civilian population of Gaza, are acute, visible and well known, and have been confirmed by numerous witnesses interviewed by my office, including local and international doctors.
These include malnutrition, dehydration, deep suffering and an increasing number of deaths among the Palestinian population, including infants, other children and women.
In some areas of the Gaza Strip, famine is already a reality, while in others it is imminent. As UN Secretary-General António Guterres warned more than two months ago, 1.1 million people in the Gaza Strip are facing catastrophic famine – the highest number ever recorded anywhere at any time – as a result of a “completely man-made disaster”.
“Two of the main culprits: Netanyahu and Gallant”
Today, my office is seeking to indict two of the key perpetrators, Netanyahu and Gallant, as both accomplices and superiors under Articles 25 and 28 of the Rome Statute.
Israel, like all states, has the right to take measures to protect its population. However, this right does not exempt Israel, or any other state, from its obligation to comply with international humanitarian law.
Regardless of any military objectives, the means that Israel has chosen to achieve these objectives in the Gaza Strip – namely, the deliberate causing of death, starvation, great suffering, and serious bodily or health injury to the civilian population – are criminal.
Khan: Emphasized legal rules
Since last year, I have repeatedly emphasized in Ramallah, Cairo, Israel and Rafah that international humanitarian law requires Israel to take immediate action to allow for large-scale access to humanitarian assistance in Gaza.
I have emphasized that starvation as a method of warfare and the denial of humanitarian assistance are violations of the Rome Statute. I could not have been clearer.
As I have repeatedly emphasized in my public statements, those who do not abide by the law cannot complain later when my Office takes action. That day has now arrived.
By submitting these requests for arrest warrants, my Office is acting in accordance with its mandate under the Rome Statute. On 5 February 2021, the Pre-Trial Chamber I decided that the Court may exercise its criminal jurisdiction in the situation in the State of Palestine and that the territorial scope of that jurisdiction extends to the Gaza Strip and the West Bank, including East Jerusalem.
ICC on its jurisdiction
This mandate is ongoing and covers the escalation of hostilities and violence since October 7, 2023. My Office also has jurisdiction over crimes committed by nationals of States Parties and by nationals of non-States Parties in the territory of a State Party.
Today's applications are the result of an independent and impartial investigation by my Office. Guided by our commitment to examine incriminating and exculpatory evidence alike, my Office has worked diligently to separate allegations of fact from conclusions and to present sober conclusions to the Pre-Trial Chamber based on evidence.
As an additional safeguard, I was grateful for the advice of a panel of experts in international law, an impartial group that I convened to assist in the review of the evidence and the legal analysis in connection with these arrest warrant applications.
The panel is composed of senior experts in international humanitarian law and international criminal law, including Sir Adrian Fulford PC, former Lord Justice of Appeal and former judge at the International Criminal Court; Baroness Helena Kennedy KC, President of the Human Rights Institute of the International Bar Association; Elizabeth Wilmshurst CMG KC, former Deputy Legal Adviser at the UK Foreign and Commonwealth Office; Danny Friedman KC; and two of my Special Advisers - Amal Clooney and His Excellency Judge Theodor Meron CMG.
This independent expert analysis has supported and strengthened the submissions made by my Office today. I was also grateful for the contributions to this review by a number of my other Special Advisors, in particular Adama Dieng and Professor Kevin Jon Heller.
Today, we are underlining once again 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.
Karim Khan is the Chief Prosecutor of the International Criminal Court.
Nothing can justify the deliberate deprivation of people, including so many women and children, of their basic necessities. Nothing can justify the taking of hostages or the deliberate killing of civilians.
The independent judges of the International Criminal Court are the only ones who can decide whether the conditions for issuing arrest warrants have been met. Should they grant my requests and issue the requested arrest warrants, I will work closely with the Registrar in all efforts to arrest the persons named.
I count on all States Parties to the Rome Statute to treat these requests and the subsequent judicial decision with the same seriousness as they have done in other cases in order to fulfill their obligations under the Statute. I am also ready to work with non-States Parties in our common pursuit of accountability.
At this moment, it is of critical importance that my Office and all parts of the Court, including its independent judges, are able to carry out their work in full independence and impartiality.
I expressly insist that all attempts to obstruct, intimidate or unduly influence the Court's staff be immediately discontinued. My Office will not hesitate to act under Article 70 of the Rome Statute if such behavior continues.
I remain deeply concerned about the continuing allegations and emerging evidence of international crimes committed in Israel, Gaza and the West Bank. Our investigations continue.
My office is pursuing several additional and interrelated lines of inquiry, including reports of sexual violence during the October 7 attacks and the large-scale bombings that have caused and continue to cause so many civilian deaths, injuries and suffering in Gaza.
I encourage those with relevant information to contact my office and provide information through OTP Link.
My Office will not hesitate to issue further requests for arrest warrants if we believe that the threshold of a realistic prospect of conviction has been reached. I reiterate my call on all parties to the conflict to abide by the law now.
I would also like to emphasize that the principle of complementarity, which is at the heart of the Rome Statute, will continue to be examined by my Office as we take action on the alleged crimes and perpetrators listed above and as we pursue other lines of inquiry.
However, complementarity requires that national authorities only act when they initiate independent and impartial judicial proceedings that do not protect suspects and do not constitute a sham. It requires thorough investigations at all levels that address the policies and practices underlying these allegations.
We should be clear today about one central point: if we do not show our willingness to apply the law equally when it is applied selectively, we create the conditions for its collapse.
In doing so, we loosen the remaining ties that bind us together, the stabilizing connections between all communities and individuals, the safety net that all victims look to in times of suffering. That is the real danger we face at this moment.
Now, more than ever, we must prove together that international humanitarian law, the fundamental basis for human behavior in conflict, applies to all people and in all situations that my office and the Court deal with. In this way, we will concretely prove that the lives of all people are of equal value.
