MAY 22 — The media reported on Monday that the International Criminal Court’s (ICC) prosecutor had requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu, his defence chief and three Hamas leaders over alleged war crimes.
ICC prosecutor Karim Khan was reported to have said that after over seven months of war in Gaza that he had reasonable grounds to believe that all “bear criminal responsibility” for alleged war crimes and crimes against humanity.
The arrest warrants are for Israel’s Netanyahu and Yoav Gallantas, and Hamas’ Yahya Sinwar, Mohammed Al-Masri and Ismail Haniyeh.
In respect of the application for arrest warrants against Netanyahu and Gallants, Karim Khan stated that both formed “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”.
The charges that the application covers include the war crime of “intentionally using starvation of civilians as a method of warfare” as well as various other war crimes and crimes against humanity associated with starvation and other acts of violence against the Gazan civilian population.
As regards the Hamas leaders, the ICC prosecutor stated that they are concerned with the murder of hundreds of civilians on October 7, 2023, and the taking of at least 245 hostages. The charges include the crimes against humanity, murder, rape and torture, and the war crimes of hostage-taking, rape and other forms of sexual violence, torture, cruel treatment, and outrages upon personal dignity for acts committed against the hostages while in captivity.
Little, if at all, was reported that the arrest warrant applications have been made following the advice of a panel of international law experts, which was convened at the request of the ICC prosecutor in January 2024 to support the evidence review and legal analysis.
The panel of experts’ mandate is to advise the ICC prosecutor on whether his applications for arrest warrants met the standard provided in Article 58 of the Rome Statute of the International Criminal Court (ICC). Specifically, the Panel has been asked to provide an opinion on whether there are ‘reasonable grounds to believe’ that the persons named in the warrants have committed crimes within the jurisdiction of the Court.
The panel is composed of the Who’s Who of public international law, international human rights law, international humanitarian law and international criminal law, namely (1) Lord Justice Fulford, retired Lord Justice of Appeal and former Vice-President of the Court of Appeal of England and Wales, former Judge at the International Criminal Court; (2) Judge Theodor Meron, former Judge and President of the International Criminal Tribunal for the former Yugoslavia and Special Adviser to the Prosecutor of the International Criminal Court; (3) Amal Clooney, Barrister, Adjunct Professor at Columbia Law School, Co-Founder of the Clooney Foundation for Justice and Special Adviser to the Prosecutor of the International Criminal Court; (4) Danny Friedman KC, Barrister, expert in criminal law, international law and human rights; (5) Baroness Helena Kennedy LT KC, Barrister, Member of the House of Lords and Director of the International Bar Association Human Rights Institute; and (6) Elizabeth Wilmshurst KC, former Deputy Legal Adviser at the United Kingdom Foreign and Commonwealth Office, Distinguished Fellow of International Law at Chatham House.
The panel is also supported by two academic advisers, namely (1) Professor Marko Milanovic, Professor of Public International Law at the University of Reading School of Law; and (2) Professor Sandesh Sivakumaran, Professor of International Law at the University of Cambridge.
Each panel member was asked to assess objectively the material provided to them by the ICC prosecutor and to advise the latter whether it meets the relevant legal test. During that time, the panel was engaged in an extensive process of review and analysis. This involved careful review of each of the applications for arrest warrants, as well as underlying evidence, including witness statements, expert evidence and authenticated videos and photographs obtained by ICC investigators.
Members of the panel also attended Evidence Review sessions at the ICC’s premises in the Hague and online. The Panel operated pro bono and independently. Its report — “Report of the Panel of Experts in International Law” — dated May 20 is available here.
Netanyahu responded with fury to the news that he might face an arrest warrant for war crimes and crimes against humanity. In a bitter personal attack, Netanyahu said Karim Khan is one of the “great antisemites in modern times”.
Gallant described the arrest warrants against him and Prime Minister Benjamin Netanyahu as a “disgraceful” attempt to interfere in the war.
Hamas leaders called out to the ICC’s prosecutor for “equating the victim with the executioner”. They said the arrest warrant applications for the Israeli leadership came seven months too late, after “the Israeli occupation committed thousands of crimes”.
US President Joe Biden was not to be left out in responding to the applications. He called the applications “outrageous”.
He may not have read or been advised of the Report of the Panel of Experts in International Law. The panel of experts unanimously agrees, among others, that the applications for arrest warrant demonstrate reasonable grounds to believe that the ICC has jurisdiction over the crimes set out in the applications, that these crimes were committed and that the suspects are responsible for them.
The panel is also satisfied that, having closely reviewed the applications, underlying evidence presented in support for the applications, the ICC prosecutor’s process was fair, rigorous and independent and that the Prosecutor’s applications for arrest warrants are grounded in the law and the facts.
What is respectful of the panel is it is cognisant that the decision on the issuance of arrest warrants is for the honourable Judges of the ICC.
Can’t the US President extend the same respect to the panel of experts?
Respect begets respect, Mr President.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
