International Criminal Court chief prosecutor Karim Khan’s decision this week to publicly seek arrest warrants against leaders of Hamas and Israel will be one of the most important and controversial decisions of his career.
Khan charged three Hamas leaders with war crimes and crimes against humanity in connection with the Oct. 7 attack on Israel and the hostage-taking. He also accused Israeli Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Galante of committing war crimes and crimes against humanity during Israel’s military operation in Gaza, including starving civilians. A three-judge panel will now consider whether to issue an arrest warrant.
Some countries welcomed the news as a sign that all individuals, regardless of their country or status, are equal before the law, while others – including Israel’s most important ally, the United States – condemned the accusations and blamed Khan There was false equivalence in seeking an arrest warrant.
Khan does not have to publicly announce the warrant application. He could have waited to get approval, as was the case last year when an arrest warrant was issued for Russian President Vladimir V. Putin — a process that could have taken weeks or months.
So why is he going so public now—not just with a press release but also a social media video and a prerecorded CNN interview?
The answer lies partly in the extreme polarization of the conflict, which will make any legal intervention subject to intense scrutiny. It’s also about what the prosecutor’s office hopes to achieve as military operations continue in Gaza, famine looms and hostages remain imprisoned.
As things stand, the chances of Netanyahu or Galante being arrested on these charges are next to zero. Even if an arrest warrant is issued, the men are safe as long as they do not travel to any ICC member state, as Israel does not recognize the court or its jurisdiction in Gaza and the court itself does not have arrest powers. The prospects for detaining Hamas leaders are equally bleak.
But the International Criminal Court, established in 1998, has the power to pursue cases even if there is little chance that the targeted individual or his or her country of residence will cooperate.
disclosure as a deterrent
When I asked the DA’s office why he chose to go public now, a spokesperson said via email that it was because Khan had “deep concerns about the ongoing nature of many of the alleged crimes cited in the application.”
If war crimes have been committed, legal proceedings have an urgency because they can prevent further harm. The ICC investigates and, if necessary, tries individuals accused of the most serious crimes and does more than just prosecute back War crimes are not only committed, but ongoing crimes are prosecuted in the hope of stopping or deterring further violations.
Khan has been trying to use his pulpit role to do just that since the early weeks of the war. In a speech in Cairo in October, he warned Hamas that hostage-taking was a crime under the Rome Statute of the International Criminal Court and a serious violation of the Geneva Conventions, and called for all hostages to be immediately released and made safe Return home.
In the same statement, he described seeing aid trucks queuing at the Rafah crossing, unable to deliver supplies to civilians in Gaza. “Obstruction of relief supplies under the Geneva Conventions may constitute a crime within the jurisdiction of the court,” he said, calling on Israel to “make immediate and visible efforts to ensure civilian access to basic food, medicine and narcotics.”
Khan told CNN in an interview on Monday that his long-standing message to all parties in the conflict is “comply now and don’t complain later.” But he said Hamas had failed to free hostages and Israel continued to block aid supplies, leaving “children starving.”
transparency
The orchestration of Monday’s announcement, which included Khan’s media appearances and a separate report from an independent panel of experts, appeared designed to provide the fullest possible evidence of the allegations and pre-empt some criticism.
“Karim Khan must uphold the legitimacy of the prosecutor’s office and the International Criminal Court,” said Kevin Jon Heller, a professor at the University of Copenhagen and special adviser to the war crimes prosecutor. Heller said he was giving his opinion rather than any “inside information” about prosecutors’ motives, adding: “I think the public is better informed in this case than in all other cases. The process is important because it involves the current head of state and the current defense minister of a Western-leaning country, as well as very powerful Western friends.
The group of legal experts published an opinion piece in the Financial Times in which they also stressed the need for transparency, writing: “This conflict is potentially unprecedented as it raises questions about the role of the International Criminal Court and jurisdictional misunderstandings, especially fragmented discourses, and in some cases anti-Semitism and Islamophobia.
“Erase nationality with airbrush”
U.S. officials were quick to criticize Khan for simultaneously announcing arrest warrants for the leader of the U.S.-designated terrorist group Hamas and the leader of the democratic state of Israel. Secretary of State Antony Blinken called the search warrant request “shameful.” “We reject the prosecutor’s equating Israel with Hamas,” he said in a statement on Monday, noting Khan’s decision to “go on cable television.”
Netanyahu also said in a statement about Khan’s actions that day, “How dare you compare the monsters of Hamas to the soldiers of the Israeli army, the most moral army in the world?”
Hamas issued a statement saying it “strongly condemns” attempts “to equate victims with executioners through the issuance of arrest warrants for several Palestinian resistance leaders.”
Supporters of the ICC argued that there was no reciprocity in the announcement: The prosecutor listed specific charges against three Hamas leaders, then in a separate section listed charges against Netanyahu and the Gaza Strip. Rand has an entirely different set of accusations.
But the decision to issue these requests simultaneously was also important in one sense: to publicly demonstrate that Khan would not discriminate in applying the law.
“If the ICC is to uphold the idea that the rule of law applies equally to everyone, then when it has evidence of a crime committed in one context and another, it should treat both equally,” American University said law professor Rebecca Hamilton. Otherwise, it risks “sending the message: ‘Well, if you are an ally of the United States, then we are not going to continue to try to challenge you,'” she said.
In an interview with CNN, Khan described a senior elected leader telling the ICC that it should focus on crime and “thugs like Putin” in Africa. He bristles at the idea that courts should treat perpetrators from wealthy democracies differently.
“What I’ve tried to do lately is look at the evidence, look at the conduct, look at the victims and erase nationality,” he said.
Some critics of the court have questioned why prosecutors issued an arrest warrant for Netanyahu but not others such as Syrian President Bashar al-Assad, who has been accused of war crimes against his own people. In short, the court has no jurisdiction over Syria.
While Israel is also not an ICC member, the court’s jurisdiction over Gaza comes from Palestine gaining UN observer status in 2012, making it an ICC member and requiring the court to investigate Gaza and the West Bank since June 2014. situation.
One step in a long unknown journey
The case will be one of the toughest tests the ICC has faced for its credibility and the principles on which it was founded.
For now, the most likely consequences will be political. The prosecutor’s role carries enough weight in some countries that his decisions can bring shame on those he accuses of crimes and put pressure on foreign allies.
But the political consequences of this shame are not always so straightforward. There are already signs that the accusations have led to Israelis uniting behind Netanyahu and Palestinians uniting behind Hamas. In the short term, search warrant requests may reinforce both parties’ commitment to their current strategies, which may prolong the conflict rather than shorten it. Long-term effects are harder to predict.
