May 20, 2024
Applications for
arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense
Minister Yoav Gallant and three top Hamas leaders have been filed by the Chief
Prosecutor of the International Criminal Court.
Warrants must be
approved by a Pre-Trial Chamber before they are issued, and that approval may
take months.
Flanked by his
two senior trial prosecutors, this afternoon in The Hague, Chief ICC Prosecutor
Karim Khan declared that “reasonable grounds” existed for charging Yahya
Sinwar, Hamas’ leader inside Gaza, Mohammed Diab Ibrahim Al-Masri (aka Deif),
the Commander-in-Chief of its military wing, the Al-Qassam Brigades, and Ismail
Haniyeh, the head of Hamas’ political bureau, with a host of war crimes and
crimes against humanity committed since “at least October 7.”
Among these:
extermination, murder, hostage-taking, rape and other acts of sexual violence,
torture, cruel treatment, outrages upon personal dignity, and other inhumane
acts.
Hamas’ alleged
crimes, Khan declared today, were “were part of a widespread and systematic
attack against the civilian population of Israel,” continuing to this day.
Then the
bombshell.
On the basis of
evidence received by his office, Khan also announced that Prime Minister
Benjamin Netanyahu and Defense Minister Yoav Gallant “bear criminal
responsibility” for a host of war crimes and crimes against humanity.
Among these:
starvation of Gazan civilians as a method of warfare, wilfully causing great
suffering or serious injury in the besieged enclave, wilful killing or murder,
intentionally directing attacks against a civilian population, extermination by
starvation, persecution and other “inhumane acts” committed from at least
October 8, all part of a “widespread and systematic attack against the
Palestinian civilian population pursuant to State policy.”
And, more may
follow.
“Our
investigation continues,” Khan announced today. “My Office is advancing
multiple and interconnected additional lines of inquiry, including concerning
reports of sexual violence during the 7 October attacks, and in relation to the
large-scale bombing that has caused and continues to cause so many civilian
deaths, injuries, and suffering in Gaza … My Office will not hesitate to submit
further applications for warrants of arrest if and when we consider that the
threshold of a realistic prospect of conviction has been met. I renew my call
for all parties in the current conflict to comply with the law now.”
Khan has much to
prosecute, going back to the start of the temporal scope of its Palestine
investigation in June 2014. This would cover Operation Protective Edge, in
2014, the 2018-2019 Great March of Return, and Khan’s lowest hanging fruit, not
mentioned at all in today’s arrest warrant statement: Israel’s settlement
enterprise – a flagrant breach of the Fourth Geneva Convention, and a war crime
under the Rome Statute of the ICC.
“Enormous step
forward”
Mondoweiss spoke
about today’s announcement with Michael Lynk, professor of law at Canada’s
Western University, and former UN Special Rapporteur on the human rights
situation in occupied Palestine.
“I think this is
an enormous step forward,” Lynk told Mondoweiss.
“Some of us were
not sure this was ever going to wind up coming, or coming in a manner that it
did. What [Khan] has done is to say that there are bright red lines with
respect to international law, that there are consequences, that no one is above
the law,”
“Today’s
announcement was a long time in coming,” Lynk added.
Long time
indeed.
Palestine
acceded to the Rome Statute of the ICC on January 1, 2015 – a move fiercely
opposed by the U.S. and other Western Powers. Then-Chief Prosecutor Fatou
Bensouda responded by opening a “Preliminary Investigation” into the “Situation
in Palestine.”
Palestine
followed up in May 2018, specifying specific Israeli violations of the Rome
Statute committed by Israel since June 13, 2014. It was a strategic start date.
Israel’s Operation ‘Protective Edge’ unfolded in July and August of that year.
Over two thousand Gazans were killed, and almost 11,000 wounded, including
3,374 children, over a thousand of whom were permanently disabled.
Given the
“complex legal and factual issues” at stake, in late 2019, Bensouda referred
the Palestine case to the court’s Pre-Trial Chamber, asking if the ICC had
territorial jurisdiction within the occupied Palestinian territory.
Yes, it did,
judges opined in February 2021, and Bensouda proceeded. On March 3, 2021, she
announced the initiation of a formal investigation, to be pursued “without fear
or favour.”
In June 2021,
Bensouda’s term of office ended, Karim Khan’s tenure began, and the Palestine
“Situation” ground to a halt, plummeting to the bottom of the prosecutorial
barrel.
Questions of
anti-Palestinian bias
Khan is a
hard-nosed British barrister with a reputation for honesty and determination.
He also has a distinctive worldview. Unlike Fatou Bensouda, a Gambian, Khan is
“geared towards” NATO, U.S. and UK interests, a highly informed source told
Mondoweiss.
Within a month
of Russia’s February 2022 invasion, Khan opened an investigation. With
unparalleled speed, almost exactly a year later, he announced arrest warrants
against Vladimir Putin and the Russian Federation’s Commissioner for Children’s
Rights.
Western powers
were delighted. No one had more say than the U.S., which is not a signatory to
the Rome Statute but was more than happy to help Khan pursue Putin.
In contrast,
Khan seemed disinterested with the Palestine “Situation.” His 2023 budget spoke
volumes, with Palestine spending under a million Euros that year (versus
Ukraine, at 4.5 million) and having a staff of six (23 on Uganda; 12 on
Ukraine).
“For Khan, at
least until the end of October [2023] when he visited the Rafah border … the
Palestine investigation did not exist for him,” a European attorney engaged
with the OPT told Mondoweiss. “He never said one word.”
Khan has visited
the OPT twice since October 7 but has yet to dispatch a single investigator to
either Gaza or the West Bank (admittedly difficult, given Israel’s refusal to
cooperate).
In the wake of
mounting carnage in Gaza, and charges of genocide, Khan could have issued a
“preventive statement,” the European attorney told Mondoweiss. Bensouda issued
one of these in October 2018, regarding the imminent eviction of the Bedouin
community, Khan al-Ahmar, the attorney pointed out. Israeli authorities didn’t
carry out the forced transfer.
Instead, silence
on Palestine prevailed at the ICC. Why?
Because
Russia-Ukraine was his top case, and he didn’t want to jeopardize it, several
sources told Mondoweiss.
“[He’s] heavily
dependent on the Americans for intelligence information [on Ukraine],” one of
those sources, an informed human rights academic, told Mondoweiss. “I think the
quid pro quo is that he move slowly on Israel.”
That quid pro
quo – if it existed – was just tossed under the bus.
Earlier this
year, Khan tapped top British barrister Andrew Cayley to lead the Palestine
case, alongside American lawyer Brenda Hollis. “Both highly competent, both
excellent professionals,” the highly informed source told Mondoweiss.
Cayley and
Hollis – stiff and stone-faced – flanked Khan in today’s videoed announcement
from the court.
“[If] we do not
demonstrate our willingness to apply the law equally, if it is seen as being
applied selectively, we will be creating the conditions for its collapse,” Khan
said.
“Now, more than
ever, we must collectively demonstrate that international humanitarian law, the
foundational baseline for human conduct during conflict, applies to all
individuals and applies equally across the situations addressed by my Office
and the Court. This is how we will prove, tangibly, that the lives of all human
beings have equal value.”
Judging from the
language of today’s announcement, though, some lives may be more equal to him
than others.
“During my own
visit to Kibbutz Be’eri and Kibbutz Kfar Aza, as well as to the site of
Supernova Music Festival in Re’im,” Khan wrote, “I saw the devastating scenes
of these attacks and the profound impact of the unconscionable crimes charged
in the applications filed today. Speaking with survivors, I heard how the love
within a family, the deepest bonds between a parent and a child, were contorted
to inflict unfathomable pain through calculated cruelty and extreme
callousness. These acts demand accountability.”
Moving on to
Israel’s alleged crimes in Gaza, Khan had nothing empathetic to say.
“I saw nothing
similar to [Israeli suffering] with respect to the 25-times as many deaths in
Gaza,” Michael Lynk told Mondoweiss.
“I still think
he understands he’s got a play to an international world that starts with the
United States regarding this. But I found that very odd, that his statement
would include deserved empathy for the survivors of what happened on October 7,
but wouldn’t include a statement of at least equal weight and compassion to
those who’ve died and those who survived what’s been going on in Gaza.”
What next?
When will the
Pre-Trial Chamber give Khan the go-ahead to prosecute, if it does at all? It
took over a year to respond to Fatou Bensouda’s jurisdiction query. Khan’s
application to the judges won’t take that long, Michael Lynk told Mondoweiss.
Accompanying his
application, Khan has provided the Pre-Trial Chamber with the comments of an
“independent panel of experts in international law … experts of immense
standing in international humanitarian law and international criminal law.”
These include: a
former Lord Justice of Appeal and former International Criminal Court Judge,
the President of the International Bar Association’s Human Rights Institute, a
former Deputy Legal Adviser at the UK Foreign and Commonwealth Office, and
Khan’s two Special Advisers – Amal Clooney and eminent Israeli jurist Theodor
Meron.
“I think [the
independent panel] gave him the confidence … to be able to have his press
conference today and to say he was issuing this,” Michael Lynk told Mondoweiss.
“He knew there was going to be enormous political blowback. I suspect it’s only
beginning to gather now.”
Indeed it has.
“This outrageous
decision is truly a slap in the face to the independent judiciary of Israel,
which is renowned for their independence,” South Carolina Senator Lindsay
Graham reportedly said today. “We must not forget as a nation the International
Criminal Court threatened to bring action against American forces in
Afghanistan – and we are a non-member … I will feverishly work with colleagues
on both sides of the aisle in both chambers to levy damning sanctions against
the ICC.”
Other leading
Republicans have joined in the bilious invective.
Joe Biden and
top Democratic Party House leader Hakeem Jeffries also both weighed in with
huge opprobrium. Khan’s arrest warrant applications are “outrageous,” Biden
said.
“The arrest
warrant request by the International Criminal Court against democratically
elected members of the Israeli government is shameful and unserious,” Jeffries
stated. “America’s commitment to Israel’s security is ironclad. I join
President Joe Biden in strongly condemning any equivalence between Israel and
Hamas, a brutal terrorist organization.”
Alongside other
crimes yet to be investigated, political threats of this sort may form the
basis of subsequent warrants, under Article 70 of the Rome Statute, Khan
suggested today.
“I insist that
all attempts to impede, intimidate or improperly influence the officials of
this Court must cease immediately,” Khan stated today.
Khan’s case
against Benjamin Netanyahu, Yoav Gallant, and other, yet-to-be-charged Israeli
government and military officials will likely be strengthened by judicial
rulings across town, at the International Court of Justice (ICJ), and vice
versa.
“I can only
imagine that the [ICJ] is going to be even more emboldened to take measures
that hopefully will include a provisional measures order for an immediate
ceasefire with regards to this,” Michael Lynk told Mondoweiss.
And Israeli
leaders have reason to be worried, says Lynk.
“Of all the
various forums, political and legal, where Israel has been accused or been
determined to have breached international law, at the International Court of
Justice, at the Human Rights Council, at the General Assembly, at the Security
Council … it’s the International Criminal Court that gives the greatest pause
to Israeli leaders,” says Lynk.
“This is the
forum that they least wanted to be judged at, because there there’s actual
teeth to this.”
“The fact that
there are 124 countries—two-thirds of the nations of the world are members of
the International Criminal Court, including most of Europe—means that
[Netanyahu and Gallant] can’t step foot in Europe, Canada, and many other parts
of the world without facing a demand for an arrest warrant to be executed
against [them],” Lynk told Mondoweiss.
“And most
countries in Europe are members of the ICC. The moment they’re on that soil,
that member state has an obligation under the Rome Statute to put into effect
arrest warrants with named individuals. So Gallant and Netanyahu cannot travel
safely to any country that’s a member of the assembly of member states …
including virtually all of Europe.”
ICC files application
for arrest warrants against Netanyahu, Gallant
The Chief Prosecutor of the
International Criminal Court (ICC), Karim Khan, announced today that his office
is filing applications for arrest warrants before Pre-Trial Chamber I of the
ICC against Israeli Prime Minister Benjamin Netanyahu and Israeli Security
Minister Yoav Gallant, for war crimes and crimes against humanity committed on
the “territory of the State of Palestine”, in the Gaza Strip, from at least 8
October 2023.
In his statement, Khan listed those
crimes under articles 7 and 8 of the Rome Statute, some of which are
“starvation of civilians as a method of warfare,” wilfully causing great
suffering or serious injury to body or health, willful killing or murder as a
war crime, “intentionally directing attacks against a civilian population” and
“persecution as a crime against humanity.”
The Chief Prosecutor of the ICC
stressed that the evidence his office gathered included interviews with
survivors and eyewitnesses, authenticated video, photo and audio material,
satellite imagery, and statements from “the alleged perpetrator group,” which
show that “Israel has intentionally and systematically deprived the civilian
population in all parts of Gaza of objects indispensable to human survival.”
‘The day has come’
After explaining how “Israel”
deliberately and systematically committed war crimes against Palestinians, Khan
emphasized, “As I also repeatedly underlined in my public statements, those who
do not comply with the law should not complain later when my Office takes
action. That day has come.”
The Chief Prosecutor of the ICC said
that it is up to the “independent judges” of the ICC to decide whether the
“necessary standard for the issuance of warrants of arrest has been met.”
He further expressed his readiness
to work on them upon approval and called on all State Parties to the ICC to
treat these applications and the subsequent judicial decision “with the same
seriousness they have shown in other Situations.”
In accordance with his previous
statements against retaliation against the Court, Khan reminded that all attempts to impede, intimidate or
improperly influence the officials of the Court “must cease immediately” adding
that his Office “will not not hesitate to act pursuant to article 70 of the
Rome Statute if such conduct continues.”
Decision ‘equates the victim with
the executioner’
It is noteworthy that the Chief
Prosecutor of the Court also announced applications for arrest warrants against
three officials of the Palestinian Resistance: Ismail Haniyeh, Yahya Sinwar,
and Mohammad Deif, for their role in Operation Al-Aqsa Flood.
A senior Hamas official, Sami Abu
Zuhri, told Reuters that this decision “equates the victim with the
executioner,” adding that it also encourages “Israel” to continue its “war of
extermination” in Gaza.
Another official from the Palestine
Liberation Organization (PLO), Wasel Abu Youssef, said that the application for
arrest warrants against the Palestinian Resistance officials is a “confusion
between the victim and the executioner.”
He emphasized that the Palestinian
people have the right to defend themselves adding that “The ICC is required to
issue arrest warrants against Israeli officials who continue committing
genocide crimes in the Gaza Strip.”
ICC warned against any threats of
retaliation, intimidation against it
The Office of the Prosecutor of the
International Criminal Court (ICC) issued a statement on May 3 on X warning
about any threats of retaliation against the Office stressing that the latter
may constitute an offense against the administration of justice.
The ICC has been looking into war
crimes committed back in 2014 in the Gaza Strip, however, it has produced no
punitive decisions against individuals. The inquiry has been expanded to
include the events of October 7, as well as the current war on Gaza.
On May 1, Israeli Prime Minister
Benjamin Netanyahu issued a statement on X addressing the back-then potential
ICC arrest warrants labeling them as an “outrage of historic proportions” and
then called on “the free leaders of the world to stand firmly against the ICC
outrageous assault” on what he claimed is “Israel’s inherent right of
self-defense.”
Netanyahu did not stop there and he
explicitly stressed that he expected those leaders to “use all the means at
their disposal” to stop this “dangerous move.”
In addition, members of Congress
warned the International Criminal Court that arrest warrants for senior Israeli
officials will result in US retaliation, and legislation for it is already in
the making, according to Axios on April 29.
It cited two Israeli officials
saying that Israeli Prime Minister Benjamin Netanyahu has asked US President
Joe Biden to prevent the ICC from issuing arrest warrants for senior Israeli
officials responsible for war crimes in the Gaza Strip.
Biden
Slams ‘Outrageous’ ICC Decision to Seek Arrest Warrants Against Netanyahu,
Gallant
Israel will try
to convince the White House and Congress to impose sanctions on the
International Criminal Court in The Hague, after the ICC’s chief prosecutor
called on Monday to issue arrest warrants for Prime Minister Benjamin
Netanyahu, Defense Minister Yoav Gallant and Hamas’ leaders.
While the United
States doesn’t recognize the ICC’s authority, the Biden administration has so
far decided against taking any concrete action against it. Now, the pro-Israel
lobby in Washington will try to propose punitive measures to be taken against
the ICC and the office of Chief Prosecutor Karim Khan, with the encouragement
of the Israeli government.
In late April, a
group of Republican Senators wrote to the chief prosecutor and warned him that
if he issued warrants against Israeli officials, they would promote sanctions
against him and his employees and his family, including barring them entry to
the United States. But such measures require bipartisan support, and it’s not
certain whether enough Democratic lawmakers would support them.
President Biden
called the application for arrest warrants “outrageous,” adding, “let me be
clear: whatever this prosecutor might imply, there is no equivalence – none –
between Israel and Hamas. We will always stand with Israel against threats to
its security.”
Secretary of
State Blinken added that the U.S. “fundamentally rejects the announcement.”
Senator Lindsey
Graham, Israel’s top Republican Senate ally, said on Monday he will “feverishly
work with colleagues on both sides of the aisle in both chambers to levy
damning sanctions against the ICC,” adding that “Prosecutor Khan is drunk with
self-importance and has done a lot of damage to the peace process and to the
ability to find a way forward.”
Rep. Ritchie
Torres, among the most vocally pro-Israel Democrats, said “the decision to seek
arrest warrants is not law but politics. It is not justice but rather
retribution against Israel for the original sin of existing as a Jewish State,”
said Rep. Ritchie Torres, among the most vocally pro-Israel Democrats, in the
first reaction from a U.S. lawmaker since Khan revealed his findings.
Conversely,
Democratic Rep. Mark Pocan, one of the most strident critics of Israel’s
conduct in Gaza, said that “If Netanyahu comes to address Congress, I would be
more than glad to show the ICC the way to the House floor to issue that
warrant.”
Senator Jim
Risch, the ranking Republican on the Senate Foreign Relations Committee, called
the ICC’s decision “absurd,” adding that it “continues to be obsessed with
targeting Israel during its time of need. There is no cause for why the court
should be investigating Israel as it is not a party to the Rome Statute and
Israel has a fully functional judiciary.”
Risch added that
“the fact that the court applied for warrants for Hamas and Israeli officials
at the same time provides a false moral equivalency between their actions.
Israel has responded to reckless Hamas aggression with extreme caution for
civilians, while Hamas raped and murdered Israeli and American civilians.
Today’s actions have hurt the credibility of the court and seriously harmed
legitimate accountability efforts where true war crimes are occurring, like
Ukraine, Syria, and across Africa.”
Republican
Senator Tom Cotton said he will work to ensure ICC employees and their families
will not be permitted to enter the U.S. following its “antisemitic and
politically motivated ‘charges.’”
“My colleagues
and I look forward to making sure neither Khan, his associates nor their
families will ever set foot again in the United States,” said Cotton, who
spearheaded previous efforts warning the ICC against taking legal action
against Israel.
In addition,
Israel will be asking friendly countries in Europe to take steps against the
ICC, though the chances of obtaining such cooperation from many of the most
important Western countries are slim. Last year, the chief prosecutor issued an
arrest warrant for Russian President Vladimir Putin and a host of Russian
military officials, on suspicion of war crimes committed in Ukraine.
Most European
governments supported the warrants against Putin and view them as a deterrent
against the Russian leader and the top regime officials in Moscow, and
therefore will not rush to take punitive action against the ICC for Israel’s
sake.
“This action is
not helpful in relation to reaching a pause in the fighting, getting hostages
out or getting humanitarian aid in,” a spokesperson for British Prime Minister
Rishi Sunak said, “referring to the decision made by the prosecutor of the
International Criminal Court.
“The U.K., as
with other countries, does not yet recognize Palestine as a state and Israel is
not a state party to the Rome Statute”, which outlines the ICC’s areas of
jurisdiction, the spokesperson added.
Asked if the
police would arrest Netanyahu if he came to Britain, the spokesperson said he
would not comment on what he called “hypotheticals”.
Czech Prime
Minister Petr Fiala harshly condemned the ICC prosecutor’s request for arrest
warrants against Netanyahu and Gallant, saying “[The proposal] to issue an
arrest warrant for the representatives of a democratically elected government
together with the leaders of an Islamist terrorist organization is appalling
and completely unacceptable.”
“We must not
forget that it was Hamas that attacked Israel in October and killed, injured
and kidnapped thousands of innocent people. It was this completely unprovoked
terrorist attack that led to the current war in Gaza and the suffering of
civilians in Gaza, Israel and Lebanon,” he continued.
Karl Nehammer,
the Chancellor of Austria, also blasted Khan’s decision. “We fully respect the
independence of the ICC. The fact however that the leader of the terrorist
organization Hamas whose declared goal is the extinction of the State of Israel
is being mentioned at the same time as the democratically elected
representatives of that very state is non comprehensible [sic.].”
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