The International Criminal Court (ICC) has issued arrest warrants for Israeli PM Benjamin Netanyahu, his former defence minister Yoav Gallant, and one of the last remaining Hamas leaders, Mohammed Deif, who might already be dead.
The warrants for the Israeli leaders were issued for crimes against humanity and war crimes that the court found reasonable grounds to believe they bore criminal responsibility for.
Here is what the court's publicly shared summary of the findings outlines, what this means, and what could happen next.
Netanyahu and Gallant's alleged crimes
The prosecution submitted an application to court accusing Netanyahu and Gallant of specific crimes from at least October 8, 2023, until at least May 20, 2024.
The court assessed the evidence and found reasonable grounds to accept most of the allegations and charge them with two war crimes and three crimes against humanity.
It added that the "alleged crimes against humanity were part of a widespread and systematic attack against the civilian population of Gaza."
While the ICC found there was sufficient evidence for both arrest warrants, the alleged crimes are yet to be tested in court.
Netanyahu strongly rejected the alleged crimes, calling them "absurd" and "false" and the warrants "anti-Semitic".
In an earlier statement, his office said the charges were biased and discriminatory.
"Prime Minister Binyamin Netanyahu will not give in to pressure, will not flinch and will not withdraw until all the war goals set by Israel at the start of the campaign are achieved," it read.
One of the main charges found against them is that they "bear criminal responsibility for the war crime of starvation as a method of warfare".
"The Chamber considered that there are reasonable grounds to believe both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October, 2023, to 20 May, 2024."
The court said it considered the following alleged actions and findings and when reaching its ruling:
- Action: Role in impeding humanitarian aid and failure to facilitate relief by all means at its disposal
- Finding: Resulted in disruption to the ability of humanitarian organisations to provide food and other essential goods
- Action: The above in addition to cutting off electricity and reducing fuel supply
- Finding: Impacted the availability of water and the ability of hospitals to provide medical care
- Action: Decisions allowing or increasing humanitarian assistance into Gaza often being conditional or in response to international pressure instead of to fulfil international humanitarian law obligations
- Finding: The increases in humanitarian assistance not being sufficient to improve the population's access to essential goods
- Action: The prolonged period of deprivation and Netanyahu's statement connecting the halt in the essential goods and humanitarian aid with the goals of war
- Finding: Their being no clear military need or other justification for the restrictions under international humanitarian law identified
The second finding was that when the alleged starvation led to death, it amounted to murder but not extermination.
"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."
The court found "there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims".
But it "could not determine that all elements of the crime against humanity of extermination were met".
The third finding was that the suffering inflicted on the injured due to lack of medical supplies amounted to inhumane acts.
"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 fourth finding was that all the above alleged actions deprived civilians of their fundamental rights.
"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."
Lastly, the court found that there are reasonable grounds to believe the pair bear criminal responsibility as civilian superiors for two specific attacks on civilians.
It said reasonable grounds exist to believe they failed to "prevent or repress the commission of crimes or ensure the submittal of the matter to the competent authorities" despite "having measures available to them" to do so.
"The material provided by the prosecution only allowed [the chamber] to make findings on two incidents that qualified as attacks that were intentionally directed against civilians."
"The chamber assessed 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."
The question of jurisdiction
Israel had made a submission to the court arguing it had no jurisdiction to investigate war crimes or issue arrest warrants to Israeli nationals.
The court rejected the challenge, noting that "the acceptance by Israel of the court's jurisdiction is not required, as the court can exercise its jurisdiction on the basis of territorial jurisdiction of Palestine."
And that challenging arrest warrants was "premature" because under the Rome Statue, "states are not entitled to challenge the court's jurisdiction … prior to the issuance of a warrant of arrest."
When assessing the war crimes, the court "found it appropriate to issue the arrest warrants pursuant to the law of international armed conflict" because there were reasonable grounds "to believe that during the relevant time, international humanitarian law related to international armed conflict between Israel and Palestine applied."
"This is because they are two High Contracting Parties to the 1949 Geneva Conventions and because Israel occupies at least parts of Palestine. The chamber also found that the law related to non-international armed conflict applied to the fighting between Israel and Hamas. The chamber found that the alleged conduct of Mr Netanyahu and Mr Gallant concerned the activities of Israeli government bodies and the armed forces against the civilian population in Palestine, more specifically civilians in Gaza. It therefore concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory."
The question of genocide
Luis Moreno Ocampo, who served as the first prosecutor of the International Criminal Court, told RN Breakfast that the case put before the court was a "minimalistic one".
He said the judges did not analyse the genocide or the bombing campaign.
"They focused on something that was very clear — which is starvation. Because Mr Gallant ordered the blockade of the food and water at the beginning, from the beginning and it's very clear," he said.
"President Biden was for one year begging Netanyahu to let the water and food go through" but it was not enough, he said.
"Basically, [the prosecution] said Israel is using starvation as a tool, as a weapon in the war.
"That is absolutely prohibited, it is not possible.
"So that why, legally it's very difficult to challenge this because it's very simple, very clear."
Meanwhile, he said trying to prove a genocide was taking place was more "complicated".
"To prove genocide the main issue is to prove intention. Has Netanyahu [the] intention to destroy the Palestinians as a group?" he said.
"Many people say yes, and it's possible, and in fact, should be investigated, because there are reasons to believe he has intentions, but he's not saying that.
"He's saying something different, he's saying we have to control terrorists, we don't to like to kill civilians.
"So it's more controversial, and the judges, I think wisely, decided not to go to this discussion, [and instead] go to something very simple, very clear, [such as] starvation as a war crime."
The ICC's prosector Karim Khan, who made the application to the court, in a statement emphasised "these applications were made following an independent investigation, and on the basis of objective, verifiable evidence vetted through a forensic process."
Deif's alleged crimes
The court also issued an arrest warrant for "Mohammed Diab Ibrahim Al-Masri, commonly known as 'Deif', for alleged crimes against humanity and war crimes committed on the territory of the State of Israel and the State of Palestine from at least 7 October, 2023."
It said Deif was the highest commander of the military wing of Hamas (known as the al-Qassam Brigades) at the time of the alleged conduct.
Deif has reportedly been killed, but that's not confirmed nor denied, and the prosecution said it will "to gather information with respect to his reported death".
It had initially sought two more for senior Hamas leaders, Ismail Haniyeh and Yahya Sinwar, but both had since been killed and applications were withdrawn.
The court found there was 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."
The court detailed actions taken by Hamas and other groups as evidence which supported its ruling including:
- Actions: Hamas carried out mass killings in Israel, including at the Supernova festival
- Finding: These killings qualify as the crime against humanity and the war crime of murder
- Action: Shooting at people with semi-automatic weapons at the Supernova festival and areas around the event
- Finding: War crime of intentionally directing attacks against civilians was committed
- Action: Civilians were killed at several separate locations in coordinated attacks
- Finding: This makes part of a mass killing of members of the civilian population, and therefore the crime against humanity of extermination was committed
- Action: A large number of people were "seized" from Israel and kept in secret locations in Gaza with Hamas in control, "conducted with the aim to negotiate their release in exchange for Palestinian prisoners held in Israel"
- Finding: The war crime of hostage taking was committed
- Action: Some of the hostages, predominantly women, were allegedly subjected to sexual and gender based violence, including forced penetration, forced nudity, and humiliating and degrading treatment
- Finding: The crimes of torture as a crime against humanity and war crime; rape and other forms of sexual violence as crimes against humanity and war crimes; cruel treatment as a war crime; and outrages upon personal dignity as a war crime were committed
The court found that Deif bore individual criminal responsibility for the all of the alleged crimes as he was one of the senior leaders of Hamas who "agreed to jointly carry out" the October 7, 2023, attack.
It found that "in his role as the commander of the al-Qassam Brigades, and through his actions prior to, during and after the 7 October Operation, is responsible for the commission of these crimes."
The court also considered that he "ordered or induced the crimes or is responsible as a military commander for the criminal conduct of his subordinates."
The impact of the arrest warrants
The warrants in their most basic form make it difficult for the leaders to travel to the 125 member countries of the ICC where they technically face the threat of arrest upon arrival.
Australia is one of those countries, but Israel's ally, the United States is not.
Mr Khan appealed to the countries to "live up to their commitment to the Rome Statute by respecting and complying with these judicial orders."
"We count on their cooperation in this situation … we also welcome collaboration with non-States Parties in working towards accountability and upholding international law," he added.
This threat of arrest could pose some challenges to a head of state, Mr Ocampo said, because his authority was now affected.
"Because it's a court, an independent court, reviewing the evidence, saying 'I'm sorry, you're committing war crimes'," Mr Ocampo said.
"He's still innocent, but he's a suspect.
"If he's not surrendering … he will be a fugitive in many countries, including Australia, including New Zealand, including Europe, including all south America."
Gallant suffers the same fate despite being fired from his job as defence minister, as he is still liable for his actions during his time in office.
Mr Ocampo said this also posed an issue for the United States as it must choose what it does.
"Legally, it's not controversial. Legally, it's clear. Politically, it's controversial," he said.
"But political actors are not a court. We are blessed that we have an international criminal court up and running, prosecuting Netanyahu, prosecuting whoever, friend or enemy, allegedly committing war crimes.
"So the problem is states have to adjust — because President Biden was always saying consistently, Israel should respect the international law.
"Well, right now, the judges say it's clear, it's clear violation of international law, so now the US is tested.
"Is the US respecting international law when a friend is committing the crimes? That is a test."
He added that Australia "could be critically important here" because with Biden's presidency almost over and Donald Trump on the way in, politically things could change.
"Biden could not stop Netanyahu, now Trump is coming, and Trump could have interesting policy here, because he's pragmatic," he said.
"He can use the ICC to transform the political situation, and Australia should help the US on that — because Australia is a member of the Rome Statue, Australia will respect the ICC decision.
"I think it's a very interesting moment, to see how political actors like Australia and the US adjust and respect international law, when a friend, that is Israel, is now confronted with it."
What happens next?
Israel will likely challenge these charges now that the arrest warrants have been issued, which will prompt the court to rule on the question of jurisdiction again.
In its release, the court said "conduct similar to that addressed in the warrant of arrest appears to be ongoing", which opens the possibility for the prosecution to conduct further investigations and make other applications.
Mr Ocampo said, however, so far Netanyahu is looking to rid himself of this situation using political means and leveraging support from the US, instead of constructing a legal argument.
"That is a pity because the warrant cannot be destroyed for that reason," he said.
He said the only way to stop the ICC is for Israel to conduct a similar, legitimate national investigation.
"Because the rules for the ICC are that it intervenes when the national judiciary is not intervening."
It's also possible for others to have warrants issued against them, but no other cases so far have been submitted to the court.
The first four crimes against Netanyahu and Gallant were for their roles as "co-perpetrators for committing the acts jointly with others", implying others within the Israeli government or elsewhere could also bear some responsibility.
The second war crime was for their roles as civilian superiors, and there is no specific mention of the military beyond noting the pairs conduct concerning "the activities of Israeli government bodies and the armed forces against the civilian population in Palestine".
With all of the ways Netanyahu could escape prosecution or arrest, Mr Ocampo said the problem now was how all of this would end.
"Because for the last year, we watched, with frustration, killing, massive killing, from Hamas against Israel, Israel against Palestinians, and this is escalated into Lebanon and the next step is Iran, and the next step is world war. So where do we stop that?" Mr Ocampo said.
"This is the chance, we have a chance now to transform a war into a criminal proceeding."
