Arrest Warrants at the ICC- a Milestone for the Victims of October 7 and implications for Israeli citizens, November 21, 2024
- Yael Vias Gvirsman
- Feb 27
- 7 min read
1. Arrest Warrant for Muhammad Deif
The International Criminal Court (ICC) Pre-Trial Chamber I, issued an arrest warrant against Muhammad Deif on charges of war crimes and crimes against humanity, including for Hamas attacks recognized as constituting extermination, murder, torture, rape, sexual violence, and inhumane acts. The ICC prosecutor initially sought arrest warrants for Yahya Sinwar and Ismail Haniye as co-accused, but these were withdrawn following confirmation of their deaths. According to Israeli reports, Deif is not alive. Nevertheless, the nature of Hamas atrocity crimes has been recognized by the Court, which is a major milestone for the victims, bearing the scars of the attacks, with many more milestones ahead.
This arrest warrant stems directly from evidence provided by October 7 Justice Without Borders, representing victims of crimes committed both on October 7 and against hostages held in Gaza. Victims from five distinct locations associated with the crimes can now actively participate in the case against Deif, with Attorney Yael Vias Gvirsman leading their representation at the ICC.
We issued the first known action directly addressed to the ICC, in the name of victims of Hamas and other Palestinian militia October 7 attacks. On, October 15, 2023 we issued our first communication to the Court, followed by an Article 15 communication (‘the complaint’) addressed to the ICC Prosecutor. From November 2023 to date, we are actively participating in the investigations to bring tangible evidence to the Office of the Prosecutor at The Hague. Among other action, we accompanied key witnesses to the Court, attesting only to the truth- that systematic excruciating atrocities were committed that day, causing as much devastation, physical and mental harm as possible. ‘They came to destroy’ was once written in a different context, this one is no different. On 12 August, 2024, on special invitation of the Pre-Trial Chambers, we communicated the ‘“Views, Concerns and General Interests of Victims of the October 7 Attack under Article 68(3)” to the Court. We asked that (a) if the Court deems it has jurisdiction, that it apply it equally against ‘citizens’ of Gaza, so that victims we represent receive their right of access to the Courts, resulting in the Court arresting, investigating and prosecuting perpetrators, Hamas, Islamic Jihad and other Palestinian militia; (b) that any decision founded in fact and law, be issued SEPARATELY so that the ‘artificial symmetry’ inevitably created by any joint statement, at the detriment of victims of Hamas attacks, be rectified and avoided in the future; and finally, (c) we stressed that all victims are equal. We must all be united to avoid human suffering. Having said that, suspects or perpetrators are not equal. Hamas suspects are hiding in tunnels and seeking asylum in repressive regimes. They set out and praised themselves for aiming to cause as much harm as possible, they came to exterminate and this was recognized by the ICC in the November 21 arrest warrant against Mohamed Deif. Israel Head of State and former Minister of Defense, are officials of a democratic, (albeit in crisis), non-State Party, in the midst of an existential, multi-faceted armed conflict reacting to concerted attacks from South, North, Eastern borders and beyond since October 7, 2023 - remember President Biden’s speech ‘don’t!’.
October 7 Justice Without Borders’ mission goes beyond this arrest warrant to englobe over 20 Hamas perpetrators and their co-perpetrators and accomplices, at the ICC and in domestic courts in Israel, Germany, France and beyond. Accompanied by civil lawsuits against States Supporting Terrorism and corporate and individual entities financing, supporting, praising Hamas atrocities before US and Israel courts, in a concerted legal action with our cherished partners. We continue our work to enhance investigations also in 2025.
2. Arrest Warrants for Israeli Prime Minister Benjamin Netanyahu and Former Defense Minister Yoav Gallant
The ICC has issued arrest warrants against Prime Minister Netanyahu and Former Defense Minister Gallant on allegations of war crimes, including starvation as a method of warfare, and crimes against humanity such as persecution and inhumane acts.
However, the court denied charges relating to alleged extermination and rejected most claims regarding the targeted killing of civilians by IDF, except in two specific instances where these accusations were upheld. Much of the court’s findings remain under seal.
So the two main elements of conduct under the Court’s scrutiny relate to :
Israel’s humanitarian aid policy since October 7, 2023 to November 2024
IDF conduct of hostilities: two incidents alleging direct attacks against civilians
Context: a social context of unrest in Israel and grave allegations of the commission of war crimes that must be genuinely investigated:
The arrest warrants against Israeli officials were issued SEPARATELY from the arrest warrant against Mohamed Deif, and published in two separate press releases. A step forward but there are still improvements to be made. Nevertheless, and understandably so, the arrest warrants were received with shock by Israel society or nation, which is at its most challenging hour.
Israel society is far from homogenic- suffice to look at Israeli streets, civilian demonstrations, acute and yet still majoritarily peaceful, torn in pain, by the unbelievably cruel reality civilians are facing since October 7 Hamas, Hezbollah’s and others' elective war against Israel and its citizens. Alongside approx. 150,000 soldiers in obligatory regular service, over 300,000 reserve soldiers, men and women who on a daily basis have regular civilian activity, are involved in combat. Their families’ lives are severely interrupted, this is a time of emergency. Israel's ethos for decades, and since its creation in 1948, has been to fight only inevitable and imposed wars. Wars of choice are a ‘privilege’ no one can entertain. It is prohibited. Life and human dignity are sacred and war is the opposite of life. So a war is fought only to save lives.
The rise of extremism, also within Israel politics and calls countering this long-standing ethos, cannot be ignored. Minority extremist holding part of power, dividing society, are a pandemic shared by most democracies in Western countries today, including in the US, France, Germany, Italy, Denmark, The Netherlands, Sweden and beyond. Democracies and societies are at an identity crisis- where are our shared values? Who are the good and the bad ‘guys’? How can democracies protect themselves from extremism and bloodshed? War is resulting in unbearable suffering, atrocities.
In Israel, worrying messianic voices calling to ‘resettle’ the Gaza Strip, bringing Israel back as an occupying power after it unilaterally disengaged in 2005, is creating great distress among civilians. We have heard of 700 families willing to ‘resettle’ in the Northern Gaza Strip. 700 families, holding 9.5 million civilians of all faiths and origins, wanting to co-exist, down to a dark path.
Only recently has Minister of Foreign Affairs, Gideon Saar, and Minister of Defense Israel Katz, stated Israel does not wish to control the Gaza Strip at the end of hostilities. An important statement- surely for the international community- but ever more so for Israel society and citizens. What is certain, despite social unrest, in time of attack, society is united behind the flag to protect civilians, the sanctity of life and human dignity. Israeli soldiers, ‘the army of the people’ do not go to the Gaza Strip to commit a genocide, hostage families are mostly calling for the cessation of hostilities and hope to see their loved ones released safely.
The legal scope of arrest warrants against Israeli officials
Genocide was not even considered as a sustainable allegation by the ICC Prosecutor when requesting the arrest warrants, but it was at the center of South Africa’s allegations in its application against the State of Israel at the International Court of Justice (ICJ), based on the Convention for the Prevention and Punishment of Genocide, allowing broad jurisdiction and access of States to the ICJ. A different court.
Nevertheless, there is severe civilian suffering in Gaza, this is an indisputable fact. There are also grave allegations substantiated by approx. 2,000 videos posted by IDF soldiers raising concern of abuse of detainees and the commission of violations that if substantiated, would amount to the commission of war crimes. Such acts are strictly contrary to IDF rules of engagement, military discipline and in any case must be investigated.
Against this backdrop, ICC arrest warrants were issued and received. Several procedural facts must be internalized:
1- the authority and discretion to ask for the withdrawal of arrest warrants belongs to the ICC Prosecutor and him alone;
2- For an arrest warrant to be withdrawn, the Prosecutor must be convinced of a valid, impartial, and thorough investigation into the same individual and alleged conduct, this is the ‘same person same conduct’ rule;
3- relevant precedents exist in situations relating to ICC investigations against UK soldiers abuse of Iraqi detainees; Colombian judicial process which is far from ‘conventional’ and presents a new model for justice within peace; and more;
4- Two incidents of directly attacking civilians, retained by the ICC arrest warrants can and must be genuinely investigated by existing, recognized domestic accountability mechanisms;
5- any such investigations need to be done in an inclusive framework, transparently reflecting internal process to the ICC Office of the Prosecutor, for reliability, credibility, legitimacy and support;
6- Other grave allegations of abuse by IDF soldiers, including outside ICC arrest warrants must equally be investigated and prosecuted, for the sake of international law but even more so, for the sake of Israel society and law;
7- allegations relating to Israel’s humanitarian aid policy in the Gaza Strip since October 7, 2023, can and must be addressed. There is no existing mechanism to do so, not in Israel and arguably not in any rule of law based democracy. No domestic penal code arguably contains the crime of starving a civilian population in armed conflict, or scrutiny over humanitarian aid policy across enemy lines- this is classically an IHL issue- although legal constructivism can be applied to create the desired judicial setting. Even where such a normative framework would exist domestically, it has not been applied in a domestic court. Therefore, the conduct alleged in the arrest warrants, relating to humanitarian policy in the conduct of hostilities, as a form of starvation, persecution, murder and inhuman treatment, is best addressed through an independent, domestic or internationalized Commission of Inquiry;
8- all investigations can be achieved, including through existing judicial cooperation agreements with friendly States, supporting the State of Israel in carrying out investigations, and prosecutions, enhancing local capacity and the credibility of the process internationally.
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