ICC Move to Seek Warrants for War Crimes in Gaza Triggers a Backlash from US

Streets in Rafah are emptying as families continue to flee in search of safety. Credit: UNRWA
  • by Thalif Deen (united nations)
  • Inter Press Service

UNITED NATIONS, May 21 (IPS) - The International Criminal Court’s (ICC) decision to seek warrants on Israeli Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Gallant has triggered a strong backlash both from the Biden administration and a group of pro-Israeli Senators in the US Congress.

The names in the ICC arrest warrants also include Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif) and Ismail Haniyeh—all leaders of Hamas.

As expected, US President Joe Biden, an unflinching supporter of Israel, who continues providing billions of dollars in American weapons used in the devastation of Gaza, described the ICC charges as “outrageous” and rejected the comparison of Israel with Hamas on charges of war crimes and crimes against humanity.

“Let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” he said in a statement. “We will always stand with Israel against threats to its security.”

Sarah Leah Whitson, executive director, Democracy for the Arab World Now (DAWN), told IPS the Prosecutor’s application for arrest warrants for Israeli and Hamas officials is a milestone in accountability in the face of decades of impunity for war crimes and crimes against humanity in Palestine.

“The U.S. Congress’ promise to attack the Prosecutor and the ICC will be an attack on international justice and the rule of law; don’t expect other countries to submit to ICC warrants if the US does not.”

“While the Prosecutor has sought these initial arrest warrants for war crimes related to the ongoing war in Gaza, the warrants that come next should indict Israeli officials for their ongoing settlement enterprise, which are also war crimes under the Rome Statute,” said Whitson.

“Any effort to ‘balance’ warrants against Israeli officials with an equal number of warrants against Palestinian officials would be an embarrassing concession to political calculations.”

In a letter to ICC Prosecutor Karim A. Khan last week, and in anticipation of the charges against Israel, a group of 12 US Senators said: “We write regarding reports that the International Criminal Court may be considering issuing international arrest warrants against Prime Minister Benjamin Netanyahu and other Israeli officials. Such actions are illegitimate and lack legal basis, and if carried out will result in severe sanctions against you and your institution”.

“By issuing warrants, you would be calling into question the legitimacy of Israel’s laws, legal system, and democratic form of government. Issuing arrest warrants for the leaders of Israel would not only be unjustified, it would expose your organization’s hypocrisy and double standards”.

“Finally, neither Israel nor the United States are members of the ICC and are therefore outside of your organization’s supposed jurisdiction. If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States”, the letter warned.

While the request must be approved by the I.C.C.’s judges, the “announcement is a blow to Netanyahu and will likely fuel international criticism of Israel’s war strategy in Gaza”, the New York Times said May 20.

Nihad Awad, National Executive Director of the Council on American-Islamic Relations (CAIR) said: "Just as President Biden recognized that the International Criminal Court's arrest warrant against Vladimir Putin due to war crimes in Ukraine was 'justified,' the president should do the same now regarding the arrest warrant applications sought by the ICC prosecutor against Benjamin Netanyahu due to war crimes in Gaza.

“War crimes are war crimes, regardless of whether they are committed by so-called American allies,” he said.

“Biden should not interfere with the clear and credible arrest warrant applications that the ICC prosecutor is seeking against Israeli leaders responsible for genocidal war crimes in Gaza, nor should our nation continue to fund those war crimes.”

“Benjamin Netanyahu is a racist mass murderer who has no intention of stopping his campaign of starvation and slaughter in Rafah and the rest of Gaza unless President Biden forces him to stop. That time has come," said Awad.

Michael Omer-Man, DAWN’s Israel-Palestine research director, told IPS while the Prosecutor has sought these initial arrest warrants for war crimes related to the ongoing war in Gaza, the warrants that come next should indict Israeli officials for their ongoing settlement enterprise, which are also war crimes under the Rome Statute.

“Any effort to ‘balance’ warrants against Israeli officials with an equal number of warrants against Hamas officials would be an embarrassing concession to political calculations,” he pointed out.

Norman Solomon, executive director, Institute for Public Accuracy, told IPS the ICC itself has long been guilty of selective prosecutions confined by the leverage of global power politics. The news this week, with appropriate legal action against Israel and Hamas, gives hope that the ICC has begun to break out of its ethnocentric self-confinement.

The biggest factors in the ongoing slaughter of civilians in Gaza by Israel are that country’s extremely cruel militarism and the huge support of that militarism by the U.S. government. Rarely has any war been so widely and fervently condemned by so many people and nations around the world.

“The Gaza war is truly a crime against humanity on a massive and ongoing scale. Accountability should be demanded not only of the Israeli leaders inflicting this slaughter but also the U.S. government that continues to make it possible, said Solomon, national director, RootsAction.org and author of “War Made Invisible: How America Hides the Human Toll of Its Military Machine.”

As a practical matter, he said, a single standard of human rights is difficult to maintain in public discourse and virtually impossible to enforce on a global basis.

War crimes and crimes against humanity, as addressed in the new announcement from the ICC, were surely committed by the leaders of both Israel and Hamas ever since early October 2023. While they do, of course, deny any such charges, the human consequences of the crimes they have overseen are horrific, he pointed out.

From the vantage point of the U.S. government, he argued, the main patron of Israel, the truth of the matter is unacceptable. And so, President Biden felt compelled to immediately denounce the ICC applications for arrest warrants for Israel’s prime minister and so-called defense minister.

“What Benjamin Netanyahu and Yoav Gallant have been doing for more than seven months is indefensible on any moral or legal grounds”.

Vastly larger than the repugnant crimes against humanity by Hamas -- which should be unequivocally condemned -- are the crimes against humanity by the Israeli government that have been heavily subsidized by the military aid and rhetorical support of the United States, said Solomon.

In his statement, the ICC Prosecutor said “on the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Yahya SINWAR (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail HANIYEH (Head of Hamas Political Bureau) bear criminal responsibility for the following war crimes and crimes against humanity” committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023:

  • Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;
  • Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);
  • Taking hostages as a war crime, contrary to article 8(2)(c)(iii);
  • Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;
  • Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;
  • Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;
  • Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and
  • Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

Regarding Israel, the ICC Prosecutor said “on the basis of 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 Defence 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:

  • Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
  • Willfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
  • Willful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
  • Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
  • Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
  • Persecution as a crime against humanity contrary to article 7(1)(h);
  • Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

“My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas (together with other Palestinian Armed Groups) running in parallel. 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. These crimes, in our assessment, continue to this day”.

“My Office submits that the evidence we have collected, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group, shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.”

IPS UN Bureau Report


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