Two US lawyers have made a war crimes and genocide filing at the International Criminal Court against two Iranian leaders over their role in the Hamas massacre on and after October 7, 2023.
Lawyers Elliot M. Malin and Eli M. Rosenbaum are also seeking the opening of an investigation and the issuance of arrest warrants against Iran Supreme Leader Ayatollah Ali Khamenei and IRGC Gen. Esmail Qaani.
Malin and Rosenbaum are representing Maurice Shnaider, who is the uncle of Shiri Bibas and the great-uncle of Ariel and Kfir Bibas. They were taken hostage from Kibbutz Nir Oz on October 7 and murdered in captivity. Their bodies were returned to Israel in mid-February. Yarden, the father and husband, was also taken hostage and was released in early February.
Shnaider’s sister, Margit Shnaider Silberman, and her husband, Yosef José Luis Silberman, were also killed in Nir Oz on October 7, after Hamas terrorists burned down their home with them locked inside.
“My family, the Shnaider family, had [five] generations tortured and murdered at the hands of those who persecute people of Jewish heritage,” said Shnaider.
He added that the Nazis murdered his grandmother during the Holocaust, while his grandfather and mother fled the camps to South America.
“‘Never again’ was supposed to mean something, so today we demand justice for my lost and affected family, and so many others also with loss at the hands of terrorists just for being Jewish.”
Iranian leaders accused of crimes against humanity, torture, extermination, among others
Shnaider, Malin, and Rosenbaum said Hamas had the full backing of Iran when it perpetrated the massacre. The lawyers found a report that shows Hamas received training in Iran right before October 7.
As such, the Article 15 filing accuses Khamenei and Qaani of the following: crimes against humanity of murder, extermination, torture, and persecution; the war crimes of taking hostages and attacking civilians; and the crime of genocide.
Despite Iran not being party to the ICC, the court’s prosecutor asserted almost two years ago that the court possesses jurisdiction over the October 7 Hamas atrocities and their aftermath.
“The individual doesn’t need to be present in the [place of] jurisdiction. As long as they participated in the crime that came from the [place of] jurisdiction, the court asserts jurisdiction,” Malin explained to The Jerusalem Post on Tuesday.
“It is long past time for the prosecutor to act to hold accountable Hamas’s main accomplices in Tehran,” added Rosenbaum.
Malin explained to the Post that the ICC does not have a duty to make the filing into a case, but that it does have a duty to look into it. Malin has requested that the ICC communicate with the lawyers and send notice of its findings, but whether it does so is up for debate.
“I don’t have high hopes for the ICC,” he added. “I think it’s a very biased institution. But I am trying to give them a way to add credibility to themselves. If they truly care about justice and seeking justice for victims, then they have the opportunity to show us that they do.”
SOMETHING THE US did a year ago has helped set a precedent for Malin and Rosenbaum’s filing by shedding light on Iran’s involvement in the October 7 massacre. In 2024, the US Department of Justice unsealed an indictment against members of Hamas for October 7, and within that indictment, it detailed Iranian involvement, including quotes from members of the Iranian government as well as leaders of Hamas, tying them together, explained Malin.
Malin said they feel confident about being able to apply the crime of genocide to the two Iranian leaders, and that Hamas and Iran’s actions fit the criteria.
“So genocide is an act with the intent to destroy in full or in part a national, ethnical, racial, or religious group. It is an intent crime. Everybody likes to push it as this numeric crime, numerical value, all of these things, but that’s just not how it works.
“We have explicit language from Iranian leaders calling for the extermination of Israel. If you’re calling for the extermination of Israel, well, the national group Israelis are a protected class under the genocide convention. So not only do I think personally, as a lawyer, that Iran [committed] incitement to genocide, I also think that they have committed the crime of genocide via Hamas.”
The two lawyers are strongly driven by the desire to seek justice for Shnaider and his family.
Malin cited Deuteronomy 16:20, which commands Jews to pursue justice, noting “we plan to pursue justice for Mr. Shnaider and his entire family.”
“It’s personal to stand up for our people as the Jewish people, which makes it a bit heavier to do,” said Malin. “But we can all do something to pursue justice. Mr. Shnaider deserves that, his family deserves that.”
Rosenbaum served as the director of the US Justice Department’s Office of Special Investigations for years. He was also the Justice Department’s counselor for war crimes accountability, and is the longest-serving prosecutor of Nazi crimes in history. He has also dealt with cases involving Russia’s crimes in Ukraine, and in the Rwanda genocide. Malin is a human rights advocate and attorney who has worked extensively within the field of genocide, including by codifying the Genocide Convention into state statute.