EXPLAINER: The arrest warrants sought by the ICC for Benjamin Netanyahu and Yoav Gallant strengthen the argument that genocide is being executed right now
The ICC application for arrest warrants buttresses arguments made by South Africa made at the International Court of Justice last week.
In case you missed the news yesterday, the International Criminal Court (ICC) seeks arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant. (Gallant is otherwise known for his comment about “human animals” very soon after October 7th, when he called for a “total siege” on Gaza.)
The ICC also issued applications for arrest warrants for three leading Hamas figures. However, in the overall scheme of things, that is not surprising, as they are not in positions of established power and the crimes of October 7th appear quite clear. However, it was always a question as to whether anyone in the Israeli regime would be held accountable for what to many seems to be a landscape of various atrocities, war crimes, crimes of aggression, crimes against humanity, and, yes, genocide, the crime of crimes. No leader of a Western democracy has ever been indicted by the Hague (it’s admittedly debatable as to whether Israel qualifies as a democracy).
I intend to visit this development by the ICC in full soon, but in the meantime I wanted to give a brief glimpse into what I consider the significance of this move.
If you read the wording of the application, first you’ll notice the severity of the charges. Karim Khan, the lead prosecutor for the ICC, asserted that Netanyahu and Gallant are directly responsible for the following, among other charges:
The use of starvation as a weapon of war;
Depriving Palestinians of items necessary for life;
Willful killing or murder, and intentionally directing attacks against a civilian population;
Willfully causing great suffering, serious injury to body or health, or cruel treatment.
I highlight the above because these charges map onto those listed in the Geneva Convention on Genocide.
As noted in this primer, the use of starvation in war falls under section C of Article II of the Genocide Convention (featured in the text box above).
Article IIc talks about deliberately imposing conditions of life which are calculated to destroy the group. So this is not necessarily referring to acts that are directly targeting the group, like killing members of the group, or torturing members of the group, or committing sexual violence against members of the group. Instead, this is about creating a situation which would lead members of the group to be destroyed.
So this is also relatively uncontroversial. The ICC Elements of Crime section says that the idea of conditions of life includes things like the deprivation of resources, such as food or medical services, or the systematic expulsion from homes.
Simply put, if you have control over a territory and you basically deliberately impose conditions which would lead to them maybe running out of water, people running out of food, besieging an area that would lead to them being unable to have access to humanitarian aid — all of [these] would constitute genocide if it is done with the prerequisite intent to destroy in whole or in part.
Khan and his team, in their statement describing the charges, stated:
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.
This 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. […]
The effects of the use of starvation as a method of warfare, together with other attacks and collective punishment against the civilian population of Gaza are acute, visible and widely known, and have been confirmed by multiple witnesses interviewed by my Office, including local and international medical doctors. They include malnutrition, dehydration, profound suffering and an increasing number of deaths among the Palestinian population, including babies, other children, and women.
The difference between the charges laid out here and what could be charged under the Genocide Convention is that the latter requires specific intent, the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such, in addition to the acts that constitute the crime. The criterion of intent is notoriously difficult to meet.
However, the International Court of Justice just recently reconvened last week in order to hear further arguments from South Africa (SA) against Israel for the crime of genocide, chiefly to have the Court prevent Israel from launching its attack against Rafah (seen by SA as the last bastion of Palestinian life in the area). The barristers took the time to delineate aspects of intent as it applies to the Israeli case. Tembeka Ngcukaitobi gave these remarks during the emergency hearing:
Members of the Israeli ministerial committee and the war cabinet have simply continued with incitement to genocide. First, the Israeli Prime Minister, Benjamin Netanyahu, who is a member of the war cabinet and the security cabinet, has gone beyond any reference to Hamas alone. Instead, he has described Israel’s aims in the military assault as being as to ensure that Gaza would never again constitute a threat to Israel. He describes Israel’s objective as being to achieve “total victory,” underscoring that “no force in the world will stop us.” “We will stand alone,” emphasizing that Israel “will fight with its fingernails.”
Second, the Israeli Minister of Defense, Yoav Gallant, a member of both the war cabinet and the security cabinet, has made it clear that Israel is taking apart neighborhood after neighborhood and will reach every location in Gaza.
Third, the Israeli Minister of Finance, Bezazel Smotrich, a member of the security cabinet, has asserted in terms: “[T]here are no half measures. Rafah, Deir al-Balah, Nuseirat — total annihilation. ‘You shall blot out the remembrance of Amalek from under heaven’ — there’s no place under heaven.” He goes on to say, “We are negotiating with the ones that should not have existed for a long time.”
For Israeli members of cabinet, it is as if there is no court order which binds them. They are not the only ones, regrettably. In an interview broadcast on Israeli television on 3 May 2024, the vice-chair of the international arm of the Likud Party — the party to which the Israeli Prime Minister belongs — stated, “I think we needed to invade Rafah yesterday to go in and get them. There are no uninvolved. We need to go in and kill and kill and kill. We need to kill them before they kill us.”
So the intent has been established by the words the leaders themselves have said and continue to say.
Thus these two independent processes double back on each other, where the actions of the ICC yesterday strengthen the efforts and the arguments presented by South Africa last week in its petition to have the World Court restrict Israel’s plan to annihilate the last remnant of constitutive Palestinian life in Gaza.
Combining these proposed ICC charges together with the strong and formidable arguments put forth by South Africa at the ICJ demonstrates that significant grounds for finding Israel (as a state) and Israeli officials (as individuals) guilty of genocide exist. This cannot be denied any longer. This is true, despite the fact that Khan declined as of yet to bring specific charges of genocide. The conditions are met.
Here is another perspective on this situation to consider. https://www.youtube.com/watch?v=lB2zXJCBZ1I