On November 21, 2024, Pre-Trial Chamber I of the International Criminal Court issued arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. On the same day, the Chambe issued arrest warrants for Mohammed Diab Ibrahim Al-Masri, commonly known as “Deif,” the highest commander of the military wing of Hamas (known as the al-Qassam Brigades).
With respect to the arrest warrant for Deif, the Chamber found “reasonable grounds to believe that [Deif]…is responsible for the crimes against humanity of murder; extermination; torture; and rape and other form of sexual violence; as well as the war crimes of murder, cruel treatment, torture,; taking hostages; outrages upon personal dignity; and rape and other form of sexual violence.” International Criminal Court, Situation in the State of Palestine: ICC Pre-Trial Chamber I issues warrant of arrest for Mohammed Diab Ibrahim Al-Masri (Deif) (https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-issues-warrant-arrest-mohammed-diab-ibrahim). The Chamber found reasonable grounds to believe that Deif was responsible for these crimes by “(i) having committed the acts jointly and through others and (ii) having ordered or induced the commission of the crimes, and (iii) for his failure to exercise proper control over forces under his effective command and control.” (Id.).
With respect to the arrest warrants for Netanyahu and Gallant, the Chamber “found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.” International Criminal Court, Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant (https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges). The elements of this crime are set forth at Article 8(2)(b)(xxv) of the “Elements of Crimes” over which the ICC has jurisdiction. (Rome Statute of the International Criminal Court, Elements of Crimes at https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf).
The Chamber also found reasonable grounds to believe that Netanyahu and Gallant bear responsibility for the “crime against humanity of murder,” the “crime against humanity of persecution,” and the “crime against humanity of other inhuman acts.” The elements of these crimes are set forth at Article 7(1)(a), Article 7(1)(h), and Article 7(1)(k). (Id.). Summarizing these grounds, and explaining why it did not find reasonable grounds for holding Netanyahu and Gallant responsible for the “crime against humanity of extermination,” the Chamber stated:
The Chamber found that there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration. On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met. However, the Chamber did find that there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.
In addition, by intentionally limiting or preventing medical supplies and medicine from getting into Gaza, in particular anaesthetics and anaesthesia machines, the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment. Doctors were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics, and/or were forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering. This amounts to the crime against humanity of other inhumane acts.
The Chamber also found reasonable grounds to believe that the abovementioned conduct deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and that the population was targeted based on political and/or national grounds. It therefore found that the crime against humanity of persecution was committed.
(Id. (emphasis added)).
Finally, the Chamber found reasonable grounds to believe that Netanyahu and Gallant bear responsibility as civilian superiors “for the war crime of intentionally directing attacks against the civilian population of Gaza,” as set forth at Article 8(2)(b)(i). The Chamber limited this finding to two incidents:
[T]he Chamber assessed that there are reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza. In this regard, the Chamber found that the material provided by the Prosecution only allowed it to make findings on two incidents that qualified as attacks that were intentionally directed against civilians. Reasonable grounds to believe exist that Mr Netanyahu and Mr Gallant, despite having measures available to them to prevent or repress the commission of crimes or ensure the submittal of the matter to the competent authorities, failed to do so.
(Id.).
At the same time that it issued the arrest warrants against Netanyahu and Gallant, the Chamber ruled on a jurisdictional challenge brought by the State of Israel. In a nutshell, Israel argued that Israel’s acceptance of the ICC’s jurisdiction is a prerequisite to the ICC having jurisdiction. In a nutshell, the Chamber reasoned that it had jurisdiction based on the territorial jurisdiction of Palestine. (International Criminal Court, Pre-Trial Chamber I, Situation in the State of Palestine, Decision on Israel’s Challenge to the Jurisdiction of the Court Pursuant to Article 19(2) of the Rome Statute, 11-21-2024 at https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a0ebd8.pdf). Israel’s jurisdictional challenge was denied without prejudice to its ability to bring a future jurisdictional challenge.
Upon my review of (1) the Chamber’s decision rejecting Israel’s jurisdictional challenge and its decision to issue arrest warrants against Netanyahu and Gallant, (2) relevant Articles of the Rome Statute, including those cited above as well as Articles 12 and 19 respecting ICC jurisdiction and challenges to same and Articles 53 and 54 respecting the power of the Prosecutor to conduct investigations and apply for arrest warrants, and (3) the reporting on the war in Gaza over the last year and a half, I see no basis for concluding that any organ of the ICC has acted in violation of the Rome Statute with respect to the ICC’s actions culminating, to date, with the issuance of arrest warrants for Netanyahu and Gallant. To be clear, the fact that Israel is not a party to the Rome Statute does not preclude the ICC from exercising jurisdiction over crimes committed by Netanyahu, Gallant, or any other Israeli national with respect to the war in Gaza. (The same holds for the United States, which also is not a party to the Rome Statute).
In short, the law is being followed. Even if there has been some instance of non-compliance with some rule of procedure of which I am not aware, there is nothing to suggest that Israel has been deprived of any remedy. Domestically, prosecutions resulting in convictions are frequently marred by prosecutorial missteps, even rule-breaking, and the convictions ultimately are upheld on appeal. Prosecution is not a perfect business, and we accept that domestically. We should accept that internationally, which is not to say that any misstep has occurred with respect to the issuance of the arrest warrants against Netanyahu and Gallant.
So, international law, which favors peace, is being followed when it comes to the ICC and its response to the war in Gaza. From a Catholic perspective (see the first two blogs), then, the actions of the ICC in response to the war in Gaza are commendable. There is nothing to condemn here. But that is what the United States has done, imposing damaging sanctions against officials of the ICC. (See https://www.whitehouse.gov/presidential-actions/2025/02/imposing-sanctions-on-the-international-criminal-court/). The United States is attempting not only to delegitimize the ICC but to disable it. The actions of the United States, from the perspective of Catholic Moral Teaching, in my judgment, are to be condemned.
In closing this post, let me say that it is worth reading the White House document on sanctions referenced above. It is important to be very clear on the conflict that exists between being a citizen of the United States, as the interests of the United States are described in this document, and being a Catholic, as the obligations of being a Catholic are described in Fratelli tutti, for example. We Catholics, starting with myself, need to stop sleepwalking through our United States citizenship.