Karim Khan, the chief prosecutor of the International Criminal Court (ICC), released a statement on Monday saying he had applied for arrest warrants for top leaders of Israel and Hamas whom his team suspects of committing war crimes and “crimes against humanity” during and since the Hamas attack on southern Israel on October 7 last year in which about 1,140 people were killed.
Israel’s bombardment and ground invasion of the Gaza Strip, which has continued for more than seven months since that attack, has killed more than 35,000 people, mostly women and children, with thousands more lost and feared dead under the rubble.
The ICC is seeking arrest warrants for five individuals – Israeli Prime Minister Benjamin Netanyahu, his Defence Minister Yoav Gallant, and Hamas leaders Yahya Sinwar, Mohamed Diab Ibrahim al-Masri (also known as Mohamed Deif) and Ismail Haniyeh.
In his statement, Khan praised the panel of experts he had convened to review the evidence and provide legal analysis to support these arrest warrants. He said its members have “immense standing in international humanitarian law and international criminal law”.
In an article for the Financial Times, the panel of experts collectively wrote that this is not the first time an international prosecutor has convened such a panel to seek advice regarding conflict and that it is not unusual for a prosecutor to invite external experts to participate in an evidence review.
Here is a closer look at who the experts on the panel are and what they said in their report to the ICC:
Who were the experts on the ICC’s panel?
- Sir Adrian Fulford: A retired lord justice of appeal in the United Kingdom, he served as a judge in England and Wales for nearly three decades until he retired from the Court of Appeal in 2022, having been a barrister since 1978. He was appointed queen’s counsel (QC) – now king’s counsel (KC) since the coronation of King Charles – in 1994. He is currently chair of the Security Vetting Appeals Panel, which is a forum within which appellants can challenge a decision to refuse or withdraw national security vetting in the UK. He was previously elected as an ICC judge for nine years from 2003 and was also a high court judge of England and Wales. Among his most prominent cases, he presided over the sentencing of Metropolitan Police officer Wayne Couzens for the murder of Sarah Everard in 2021.
- Judge Theodor Meron: An American-Israeli lawyer and judge who has served on United Nations tribunals relating to war crimes in the former Yugoslavia and Rwanda. He is also a visiting professor of the Oxford Law Faculty, an honorary fellow of Trinity College, a visiting fellow of Mansfield College and a professor emeritus at New York University Law School. Additionally, he is a special adviser on international humanitarian law to the ICC prosecutor and is affiliated with the Council on Foreign Relations and the Institute of International Law.
- Amal Clooney: A British-Lebanese barrister and human rights lawyer who represents clients before the ICC, the International Court of Justice (ICJ) and the European Court of Human Rights. She has represented victims of the Yazidi genocide, as well as victims of genocide in Sudan’s Darfur. Clooney has worked for the freedom of political prisoners and journalists in the past, including the head of WikiLeaks, Julian Assange, and currently works with award-winning journalist Maria Ressa from the Philippines. She is an adjunct professor at Columbia Law School. Together with her husband, Hollywood actor George Clooney, she founded the Clooney Foundation for Justice, which provides free legal support to victims of human rights abuses globally.
Amal Clooney announces the conclusions of the Panel of Experts in International Law, convened by @KarimKhanQC to advise on @IntlCrimCourt arrest warrant applications for crimes in Israel and Palestine. Read her @FinancialTimes oped. https://t.co/cP4c9hhzUG
— Clooney Foundation for Justice (@ClooneyFDN) May 20, 2024
- Danny Friedman: A king’s counsel (KC) barrister at London-based barristers’ chambers Matrix Chambers, one of whose founding members was Cherie Blair, wife of former UK Prime Minister Tony Blair. Friedman currently practises as a temporary high court judge in Northern Ireland. He legally advises private individuals, nongovernmental organisations and state organisations seeking to comply with human rights and humanitarian law obligations within and outside the UK. Friedman has particular expertise in terrorism and counterterrorism law.
- Baroness Helena Kennedy: She is a Scottish barrister based at Doughty Street Chambers, London, and director of the International Bar Association’s Institute of Human Rights. Helena Kennedy is president of Justice, a law reform think tank. Among her more famous cases, she represented the notorious child murderer, Myra Hindley, during her 1974 trial after plotting to escape from Holloway Prison.
- Elizabeth Wilmshurst: A distinguished fellow of international law at Chatham House, London. She has worked as a visiting professor at University College London. She was deputy legal adviser to the Foreign & Commonwealth Office (FCO) in 2003 but resigned when her legal opinion that the invasion of Iraq was illegal without a second United Nations Security Council resolution was reversed on March 20 that year. In 2010, she gave evidence to the Iraq Inquiry about the legality of the invasion of Iraq and the advice she had given to the government.
What did the ICC panel conclude about Israel’s war on Gaza?
The report says the panel was convened so the experts could assess “objectively the material provided to them by the Prosecutor and to advise the Prosecutor whether it meets the relevant legal test”.
In the report:
- The panel agrees with Khan’s assessment that the ICC has jurisdiction over the case since Palestine is a state party as per the ICC statute.
- The panel adds that it knows investigations for additional crimes are under way and are “expected to lead to additional applications in the future”.
- The experts write that “Hamas is a highly organised non-State armed group”, and the fighting between Israel and Hamas qualifies as non-international armed conflict between governmental forces and one or more armed groups.
- However, the panel notes there is also international armed conflict between Israel and Palestine because the latter is a state “in accordance with criteria set out in international law”. The panel determines that both Israel and Palestine are “High Contracting Parties” which have ratified the Geneva Convention and there is a “belligerent occupation by Israel” over “at least some” of Palestine.
- The panel’s assessment concludes that the three Hamas leaders “had a common plan that necessarily involved the commission of war crimes and crimes against humanity” and that this plan was systemic against the civilian population of Israel. This is based on material provided by Khan and statements from “survivors and eye-witnesses at the scene of six key attack locations – Kfar Aza, Holit, the location of the Supernova Music Festival, Be’eri, Nir Oz, and Nahal Oz – video material and statements by the perpetrators”.
- The report adds that civilians in Gaza have been depending on Israel for objects essential for survival even before October 7 due to multiple factors, including Israel’s restriction on mobility in Gaza following the 2005 disengagement plan, under which Israel technically withdrew from Gaza and removed its settlers.
- Referring to the use of starvation by Israeli leaders as a method of warfare, the report says “parties to an armed conflict must not deliberately impede the delivery of humanitarian relief for civilians”, and that following its ground operations in Gaza, “Israel certainly became the occupying power in all of or at least in substantial parts” of the enclave.
- The panel also adds that based on the material it has assessed, it has reason to believe Netanyahu and Gallant have intentionally targeted civilian populations in Gaza and have contributed to starvation.
What’s next?
A panel of three judges at the ICC will now make a decision on whether to issue the arrest warrants. Judges usually take two months to make such decisions. However, experts say it is likely the arrest warrants will be granted.
Mark Kersten, a consultant at the Wayamo Foundation, a non-profit organisation for the promotion of international criminal justice based in Berlin, and an assistant professor of criminal justice and criminology at the University of the Fraser Valley in Canada, said: “The judges need to be satisfied with the legal standard at this stage, which is that there are ‘reasonable grounds to believe’ that the individuals listed are responsible for the charges laid out in the prosecutor’s request. This is a low legal barrier.
“The warrants are virtually guaranteed because of how much work has gone into the prosecutor’s request and the low threshold that needs to be met.”
