Historic! Group of experts in international law releases letter in support of cases against Israel at the International Court

A group of prestigious experts in international law, although with inexcusable delay, has just published a powerful letter in support of the International Criminal Court’s processes against the crimes committed by Israel in Gaza.

It is a historical text. Read:

Why we support ICC prosecutions for crimes in Israel and Gaza

The Hamas attacks on Israel on October 7 and the military response by Israeli forces in Gaza have tested the system of international law to the limit. That is why, as international lawyers, we felt an obligation to help when the International Criminal Court prosecutor, Karim Khan, asked us to advise whether there was sufficient evidence to bring charges of war crimes and crimes against humanity. Today, the prosecutor took a historic step to ensure justice for victims in Israel and Palestine, issuing requests for five arrest warrants alleging war crimes and crimes against humanity by senior Hamas and Israeli leaders. These include requests for arrest warrants against Hamas political and military commanders and Israeli Prime Minister Benjamin Netanyahu.

For months, we engaged in an extensive review and analysis process. We carefully examined each of the arrest warrant applications, as well as the underlying material produced by the prosecution team in support of the applications. This included witness statements, expert evidence, official communications, videos and photographs. In our legal report published today, we unanimously agreed that the prosecutor’s work was rigorous, fair and grounded in the law and facts. And we unanimously agree that there are reasonable grounds to believe that the identified suspects committed war crimes and crimes against humanity within the jurisdiction of the ICC.

It is not uncommon for the prosecutor to invite outside experts to participate in a review of evidence, under appropriate confidentiality agreements, during the course of an investigation or trial. And this is not the first time that an international prosecutor has formed a Panel of Experts to advise on possible charges related to a conflict. But this conflict is perhaps unprecedented in that it has given rise to misunderstandings about the role and jurisdiction of the ICC, a particularly fractured discourse and, in some contexts, even anti-Semitism and Islamophobia.

It is against this backdrop that, as lawyers specializing in international law from diverse personal backgrounds, we felt we had a duty to accept the invitation to provide an impartial and independent legal opinion based on evidence. We were selected for our expertise in public international law, international human rights law, international humanitarian law and international criminal law, and, in the case of two of us, experience as former judges of international criminal courts. Our common goal is to advance accountability and we reach our conclusions based on an evaluation of arrest warrant applications against an objective legal standard. We reached these conclusions unanimously. And we believe it is important to publish them, given how much the speech has been politicized, misinformation has been rampant, and international media have been denied access to the front lines.

The Panel unanimously agrees with the prosecutor’s conclusion that there are reasonable grounds to believe that three of Hamas’ most senior leaders — Yahya Sinwar, Mohammed Deif and Ismail Haniyeh — committed war crimes and crimes against humanity by murdering hundreds of civilians, the taking of at least 245 hostages and acts of sexual violence committed against Israeli hostages. The Panel also unanimously agrees that the evidence presented by the prosecutor provides reasonable grounds to believe that Netanyahu and Israeli Defense Minister Yoav Gallant committed war crimes and crimes against humanity. This includes the war crime of intentionally using the starvation of civilians as a method of warfare and the murder and persecution of Palestinians as crimes against humanity. Our reasons for reaching these conclusions are set out in our legal report.

It is important to understand that accusations have nothing to do with the reasons for the conflict. The charges relate to waging war in a way that violates long-established rules of international law that apply to armed groups and armed forces in all states around the world. And of course, the warrant requests announced today are just the first step. We expect the prosecutor to continue to conduct focused investigations, including in relation to the extensive harm suffered by civilians as a result of the bombing campaign in Gaza and evidence of sexual violence committed against Israelis on October 7.

There is no doubt that the step taken today by the prosecutor is a milestone in the history of international criminal law. There is no conflict that should be excluded from the scope of the law; no child’s life should be valued less than another. The law we apply is the law of humanity, not the law of any side. She must protect all victims of this conflict; and all civilians in the conflicts to come.

ICC judges will ultimately determine which warrants, if any, should be issued. And as investigations continue, we hope state authorities, witnesses and survivors will engage with the judicial process. Ultimately, we hope this process will contribute to greater protection of civilians and sustainable peace in a region that has already endured too much.

Signatories:

Lord Justice Fulford, retired Lord Justice of Appeal, former vice-president of the Court of Appeal for England and Wales and former judge at the International Criminal Court

Judge Theodor Meron CMG, Visiting Professor at the University of Oxford, Honorary Fellow of Trinity College, and former judge and former President of the International Criminal Tribunal for the former Yugoslavia

Amal Clooney, attorney, adjunct professor at Columbia Law School, and co-founder of the Clooney Foundation for Justice

Danny Friedman KC, lawyer, specialist in criminal law, international law and human rights

Baroness Helena Kennedy LT KC, lawyer, member of the House of Lords and director of the International Bar Association Human Rights Institute

Elizabeth Wilmshurst CMG KC, former Deputy Legal Adviser at the UK Foreign and Commonwealth Office and Distinguished Fellow for International Law at Chatham House

Published in Financial Times.