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Explainer: The ICC and the Israel-Hamas war in Gaza

FILE - The building of International Criminal Court, or ICC, is seen in The Hague, Netherlands, Nov. 7, 2019.
FILE - The building of International Criminal Court, or ICC, is seen in The Hague, Netherlands, Nov. 7, 2019.

The head prosecutor at the International Criminal Court said Monday he is seeking arrest warrants for Israeli and Hamas leaders, including Israeli Prime Minister Benjamin Netanyahu and Hamas leader Yahya Sinwar, for their actions in the war in Gaza.

Prosecutor Karim Khan is also seeking warrants for Israeli Defense Minister Yoav Gallant and Hamas leaders Mohammed Deif and Ismail Haniyeh.

Khan said in a statement that Netanyahu and Gallant “bear criminal responsibility” for war crimes and crimes against humanity. The Hamas leaders are responsible for war crimes and crimes against humanity, including extermination, torture, rape and sexual violence, cruel treatment and taking hostages, Khan said.

Casualties in the Israel-Hamas war

Since Hamas launched a terror attack October 7 on Israel, killing about 1,200 people and taking roughly 250 hostages, Israel has embarked on an offensive to eliminate Hamas from Gaza.

Last week, Israel’s government offered the first estimate of the operation’s death toll, saying its troops have killed 14,000 terrorists and 16,000 civilians.

While that toll is slightly lower than the 35,000 people the Hamas-run Ministry of Health in Gaza has reported, Hamas maintains that most of those casualties so far are women and children, although it does not distinguish between civilians and combatants in its tallies.

History of the ICC

The ICC was established in 2002 to serve as a permanent court to prosecute individuals responsible for war crimes, crimes against humanity and genocide.

The court is governed by an international treaty called the Rome Statute, which was adopted by the U.N. in 1998. It took effect on July 1, 2002.

The ICC, which has 124 member states, is independent but is endorsed by the U.N. General Assembly. The court can only intervene when a country is unable or unwilling to investigate or prosecute crimes on their territory.

The court must identify a suspect and gather evidence before issuing a warrant. It cannot prosecute groups or States.

Member-state authorities must cooperate to apprehend suspects because the ICC does not have its own police force. Defendants cannot be tried if they are not present, so warrants can only be issued against individuals in member-state territories.

Netanyahu said in April that Israel "will never accept any attempt by the ICC to undermine its inherent right of self-defense."

The ICC and the Israeli-Palestinian conflict

Palestine at present is recognized as a sovereign state by 143 of the 193 U.N. member states. It was granted nonmember observer state status by the United Nations General Assembly in 2012.

The ICC accepted "The State of Palestine" as a member in 2015.

Former ICC head prosecutor Fatou Bensouda announced in 2021 that she was launching a probe into Israel’s possible war crimes on Palestinian territory. Netanyahu denounced the decision.

“The ICC is not a panacea, but only seeks to discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes,” Bensouda said in a 2021 statement about the probe.

Khan met in December with Palestinian officials and families of Israelis killed or taken hostage by Hamas militants in the Oct. 7 attack.

He called for the immediate release of hostages and said the actions of Hamas militants were "some of the most serious international crimes that shock the conscience of humanity, crimes which the ICC was established to address."

“International humanitarian law must still apply” in the Israel-Hamas war, Khan said in a December statement. “The Israeli military knows the law that must be applied.”

An ICC investigation into possible war crimes by Hamas militants and Israeli forces "is a priority for my office," he said.

Some material in this report came from The Associated Press.

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