The decision of Karim Khan, the Chief Prosecutor of the International Criminal Court, to publicly request arrest warrants for the leaders of Hamas and Israel, this week will be one of the most important and controversial of his career.
Khan accused three Hamas leaders of war crimes and crimes against humanity related to the October 7 attack on Israel and hostage taking. He also accused Israel's Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Gallant of war crimes and crimes against humanity during Israel's military operation in Gaza, including the hungry of citizens. Now a three-judge panel will consider whether the warrants should be issued.
Some countries welcomed the news as a sign that all individuals, regardless of state or status, are equal before the law, while others – including the United States, Israel's main ally – denounced the allegations and accused Khan of false equivalence in pursuit of arrest warrants. for Hamas and Israeli leaders at the same time.
Khan did not have to publicly announce the warrant applications. He could have waited until they were granted, as he did last year with the arrest warrant for President Vladimir V. Putin of Russia — a process that could take weeks or months.
So why did he go public now and with so much fanfare – by not just a press releasebut also social media videos and a pre-recorded interview with CNN?
The answer lies partly in the extremely polarizing nature of this conflict, in which any legal intervention would be subject to in-depth scrutiny. It is also about what the Public Prosecution Service hopes to achieve now that military action in Gaza continues, famine threatens and the hostages remain in captivity.
As things stand now, there is virtually zero chance that Netanyahu or Gallant will ever be arrested on these charges. Even if the arrest warrants are issued, the men would be safe as long as they do not travel to any of the ICC member states, because Israel does not recognize the court or its jurisdiction in Gaza, and the court itself has no arrest powers. The prospects for capturing Hamas leaders are also bleak.
But the ICC, which was established in 1998, has a mandate to prosecute cases even when there is little chance of cooperation from the targeted individuals or the states where they reside.
Disclosure as deterrence
When I asked the prosecutor's office why he had chosen to go public now, a spokesperson said by email that it was because of Khan's “significant concerns about the ongoing nature of many of the alleged crimes identified in the requests.”
When war crimes occur, the legal process is urgent because it can prevent further damage. The role of the ICC, which investigates and, where justified, tries individuals after war crimes are being committed, but also to prosecute cases where crimes are still taking place, in the hope of halting or deterring further violations.
Since the first weeks of the war, Khan has tried to use his role as a bully pulpit to do just that. In a speech in Cairo in October, he warned Hamas that taking hostages was a crime under the ICC's Rome Statute, as well as a serious violation of the Geneva Conventions, and called for the immediate release of all hostages and their safe return to their country. families.
In the same statement, he described seeing aid trucks queuing at the Rafah crossing, unable to deliver goods to civilians in Gaza. “Obstructing the delivery of relief supplies as provided for by the Geneva Conventions may be a crime within the jurisdiction of the court,” he said, calling on Israel to “make observable efforts without further delay to ensure that citizens receive basic food , medicines and anesthetics.”
In his interview with CNN on Monday, Khan said his message to the sides in the conflict has long been “comply now, don't complain later.” But, he said, Hamas had failed to release its hostages, and Israel had continued to hamper aid deliveries, leading to “starving children.”
Transparency
The choreography of Monday's announcement, including Khan's media appearances and the publication of a separate report from a panel of independent expertsseemed aimed at presenting the evidence for the allegations as fully as possible, and anticipating some of the criticism that would inevitably follow.
“Karim Khan must maintain 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 prosecutor on war crimes. Heller said he was giving his opinion rather than any “inside knowledge” about the prosecutor's motives, adding: “I think it's important that the public has an even better understanding of the trial in this situation than in any other others, because it concerns a sitting head of state and a sitting minister of defense in a West-leaning country with very powerful Western friends.”
The panel of legal experts published a opinion article in The Financial Times, also underlining the need for transparency, they wrote: “This conflict is perhaps unprecedented in the extent to which it has given rise to misunderstandings about the role and jurisdiction of the ICC, to a particularly fractured discourse and, in some contexts, even anti-Semitism and Islamophobia.”
'Airbrush out nationality'
U.S. officials were quick to criticize Khan for simultaneously announcing requests for arrest warrants against the leaders of Hamas, a U.S.-designated terrorist organization, and the leaders of Israel, a democracy. Secretary of State Antony J. Blinken called the warrant requests “shameful.” “We reject the prosecutor's equivalence of Israel with Hamas,” he said said in a statement Monday, noting Khan's decision to go “on cable TV.”
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 world's most moral army?”
Hamas said in a statement that it strongly denounces “the attempt to equate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders.”
Supporters of the ICC have argued that this was the case no equality in the announcement: The prosecutor laid out the specific charges against three Hamas leaders, and then in a separate section listed a completely different set of charges against Netanyahu and Gallant.
But the decision to file the requests at the same time was, in a sense, the point: a public demonstration that Khan would not discriminate in his application of the law.
“If the ICC wants to uphold this idea that the rule of law applies to all equally, then when it has evidence of crimes committed in one context and in another context, it must treat both equally,” says Rebecca Hamilton , professor of law at American University. University. Otherwise you risk “sending a message saying, 'If you are an ally of the US, then we will not continue to try to challenge you,'” she said.
In his CNN interview, Khan described having a senior elected leader tell him what the ICC should focus on crimes in Africa and 'criminals like Putin'. He was annoyed by the idea that the court should treat perpetrators from wealthy democracies differently.
“The way I tried to do things recently was look at the evidence, look at the behavior, look at the victims and pick out the nationality,” he said.
Some critics of the court have questioned why the prosecutor would pursue an arrest warrant for Netanyahu but not, for example, Bashar al-Assad, the president of Syria, who is accused of war crimes against his own people. The short answer is that the court has no jurisdiction over Syria.
Although Israel is also not a member state of the ICC, the court's jurisdiction in Gaza stems from the fact that Palestine was granted observer status at the United Nations in 2012, which allowed the country to become a member of the ICC and petition the court to initiate an investigation. the situation in Gaza and the West Bank since June 2014.
One step in a long, unknown journey
This case will be one of the most serious tests the ICC has faced of its credibility and, by extension, of the principles on which it is founded.
For now, the most likely consequences will be political. The role of the prosecutor is so important in some countries that his decisions can create a stigma for those he accuses of crimes and put pressure on foreign allies.
But the political consequences of such stigma are not always clear. There are already signs that the accusations have led Israelis to rally behind Netanyahu and Palestinians to rally behind Hamas. In the short term, the warrant requests could solidify the parties' commitment to their current strategies, prolonging rather than shortening the conflict. The long-term consequences are more difficult to predict.