Why we support the ICC's prosecution of crimes committed in Israel and Gaza
The Hamas attacks in Israel on October 7, 2023, and the military response of Israeli forces in Gaza have put the system of international law to the test, pushing it to its limits.
This is why, as international lawyers, we felt obliged to help when the Prosecutor of the International Criminal Court, Karim Khan, asked us to say whether he There was sufficient evidence to bring charges of war crimes and crimes against humanity here.
Today, the prosecutor took a historic step toward justice for victims in Israel and Palestine, issuing requests that five arrest warrants be issued alleging war crimes and crimes against humanity committed by senior leaders of Hamas and Israel. These include requests for arrest warrants against the political and military commanders of Hamas and against Israeli Prime Minister Benjamin Netanyahu.
For months, we have been engaged in an extensive review and analysis process. We have carefully reviewed each of the arrest warrant requests, as well as the underlying documents produced by the prosecutor's team in support of those requests. This includes witness statements, expert testimony, official communications, videos and photographs.
In our legal report released today, we unanimously agree that the prosecutor's work was rigorous, fair and based on the law and the facts. And we unanimously agree that there are reasonable grounds to believe that the suspects he identifies have committed war crimes and crimes against humanity falling within the jurisdiction of the ICC.
It is not uncommon for the prosecutor to invite external experts to participate in a review of evidence, framed by appropriate confidentiality agreements, during an investigation or trial. And this is not the first time that an international prosecutor has formed a group of experts to advise on possible conflict-related charges. But this conflict is perhaps unprecedented, in that it has given rise to misunderstandings about the role and jurisdictional competence of the ICC, to a particularly fractured discourse and even, in certain contexts, to anti-Semitism and Islamophobia.
It is in this context that, as lawyers specializing in international law from diverse personal backgrounds, we felt we had to accept the invitation to provide impartial and independent legal advice based on evidence.
We were selected because of our expertise in public international law, international human rights law, international humanitarian law and international criminal law and, in the case of two of us, our experience as former judges of international criminal tribunals.
Our shared goal is to advance the accountability of defendants, and we reached our conclusions based on an assessment of warrant requests against an objective legal standard. We arrived at these conclusions unanimously. And we think it's important to publish them given how the discourse has been politicized, disinformation spread, and international media barred from the front lines of the war.
The Group unanimously agrees with the prosecutor's conclusion that there are reasonable grounds to believe that three of Hamas's top leaders – Yahya Sinwar, Mohammed Deif and Ismail Haniyeh – committed war crimes and crimes against humanity including the murder of hundreds of civilians, the taking of at least 245 hostages and acts of sexual violence perpetrated against Israeli hostages.
The Committee also unanimously agrees that the evidence presented by the prosecutor provides reasonable grounds to believe that Netanyahu and Israeli Defense Minister Yoav Gallant committed war crimes and crimes against humanity.
This includes the deliberate use of starvation as a weapon of war against the civilian population qualifying as a war crime, and the murder and persecution of Palestinians qualifying as crimes against humanity. The reasons that lead us to these conclusions are set out in our legal report.
It is important to understand that the accusations have nothing to do with the reasons for the conflict. The charges concern a war waged in a manner that violates long-established rules of international law that apply to armed groups and armed forces in all states around the world. And of course, the mandate requests announced today are only a first step.
We hope that the prosecutor will continue to conduct targeted investigations, including into the extensive damage suffered by civilians following the bombing campaign in Gaza and into evidence of sexual violence committed against Israelis on October 7.
There is no doubt that the action taken today by the prosecutor constitutes an important milestone in the history of international criminal law. No conflict should be beyond the reach of the law; No child's life is worth less than another's. The law we apply is the law of humanity, not the law of any given side.
It must protect all the victims of this conflict; and the entire civilian population in future conflicts. ICC judges will ultimately determine what, if any, warrants should be issued. And as investigations continue, we hope that state authorities, witnesses and survivors will participate in the legal process. Finally, we hope that this process will contribute to increased protection of civilian populations and lasting peace in a region which has already endured too much.
Lord Justice Fulford, retired Court of Appeal judge, former Deputy President of the Court of Appeal of England and Wales and former judge of the International Criminal Court.
Judge Theodor Meron CMGvisiting professor at the University of Oxford, honorary fellow of Trinity College and former judge and former president of the International Criminal Tribunal for the former Yugoslavia.
Amal Clooneyattorney, assistant professor at Columbia Law School and co-founder of the Clooney Foundation for Justice.
Danny Friedman KClawyer, expert in criminal law, international law and human rights.
Baroness Helena Kennedy LT KClawyer, member of the House of Lords and director of the Human Rights Institute of the International Bar Association.
Elizabeth Wilmshurst CMG KCformer Deputy Legal Adviser at the UK Foreign and Commonwealth Office and a leading international law scholar at Chatham House.
Source: Financial Times
BM translation for the Palestine Media Agency
