A bona fide country and a terrorist group cannot be equated and the legal minds at the International Criminal Court (ICC) must be aware of that distinction. And yet the ICC’s chief prosecutor’s office has decided to do precisely that by seeking arrest warrants for Israel’s Prime Minister and Defence Minister and the top leaders of Hamas, Yahya Sinwar, Ismail Haniyeh and Mohammed Deif, for crimes against humanity in their war. That points to pressure to appear “even-handed”.
The reactions have been along predictable lines—Hamas and Israel have cocked a snook (metaphorically speaking, of course) at the fightin’ words of ICC’s chief prosecutor, Karim AA Khan, a British lawyer of Pakistani Ahmadiyya descent. Both rejected the idea of turning over their respective leaders to stand trial. The US has also stoutly defended its ally Israel, though France has supported the move. But a few aspects need to be clarified when assessing Khan’s move.
First, the ICC was set up under the Rome Statute, and not every country accepts its writ, unlike the much wider ambit of the other court based in The Hague, the International Court of Justice. The ‘State of Palestine’ has signed the statute; India and Pakistan have not, for instance. Nor has China. The US, Russia and Israel were signatories but pulled out. That several non-party nations are in ICC’s cross-hairs currently, reflects the priorities of the majority of its signatories.
Notably, in March 2023, the ICC issued arrest warrants for Vladimir Putin and Maria Alekseyevna Lvova-Belova (Russia’s Commissioner for Child Rights) for the “war crime of unlawful deportation of population” and “unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.” In March 2024 ICC also issued arrest warrants against armed forces officers Lt Gen Sergei Kobylash and Admiral Viktor Sokolov.
Khan’s office had cited “reasonable grounds to believe” they were responsible for missile strikes carried out by the forces under their command against the “Ukrainian electric infrastructure” from 10 October 2022 until 9 March 2023 which “caused civilian harm and damage” that were “excessive to any military advantage”. Would any nation let its military brass be prosecuted now in a civilian court—that too in an ‘international’ venue—for decisions during a war?
In issuing such warrants the ICC and its prosecutor had obviously set themselves up to be ignored by Russia. The only perceivable outcome of these warrants would be to hinder Putin’s foreign travel for a while—more an annoyance than a deterrent or a move for justice. The same seems to be the case with the demand for warrants against Israel’s Benjamin Netanyahu and Yoav Gallant at a time when negotiations are on for a ceasefire in Gaza and the release of hostages.
Israel had deemed Khan to be “pragmatic” when he was elected chief prosecutor in 2021 given his past record of going after Islamists like ISIL. Will that view be cemented by his double whammy? No one seriously imagines that Israel will accept this ICC fatwa, and the US has already spoken up for Israel. A deadlock on this issue is a foregone conclusion, and that will also give Netanyahu cause to claim an international witch-hunt to counter rising domestic opposition.
Khan figuratively cuffing both Hamas and Israeli leaders will not please many people. Because, even if the arrest warrants are indeed issued, Israel is not obliged to offer up its cited leaders as it is not party to the Rome Statute or ICC anymore. But the State of Palestine IS a party, and hence it must produce the three Hamas leaders to face trial. Qatar—where some are based—is also not a member of the ICC. Will the official Palestine government dare to hand over Hamas leaders?
Amid the uproar—joyful in some camps, indignant in others—there has not been enough focus on the fact that the prosecutor has not only taken aim at the top leadership of Hamas for killing civilians inside Israel, but he has also stopped short of accusing the two Israeli leaders of genocide, the first of four categories of ‘crimes’ under the ICC’s mandate. The other three—crimes against humanity, war crimes and crime of aggression—are less harsh accusations.
Khan wants arrest warrants to prosecute Netanyahu and Gallant for perpetrating a “manmade disaster” by causing “catastrophic hunger” in Gaza—borrowing terms used by UN Secretary-General António Guterres two months ago. By that count, though, he should have investigated Sir Winston Churchill (posthumously, sadly) for wilfully causing the Bengal Famine of 1943 but unfortunately, ICC can only take up cases arising from events that happened after July 1, 2002.
The charges against the Hamas leaders are unequivocal. The official statement from his office says, “there are reasonable grounds to believe” the three are “criminally responsible for the killing of hundreds of Israeli civilians in attacks perpetrated by Hamas (in particular its military wing, the al-Qassam Brigades) and other armed groups on 7 October 2023 and the taking of at least 245 hostages.” It adds that they “planned and instigated” the “crimes”.
Crucially, the prosecutor’s office interviewed “victims and survivors, including former hostages and eyewitnesses” from Kfar Aza, Holit, the Supernova Music Festival, Be’eri, Nir Oz and Nahal Oz besides getting CCTV footage, authenticated audio, photos and videos, and “statements by Hamas members including the alleged perpetrators”. The office avers that the three visited the hostages after their kidnapping and “acknowledged their responsibility”.
Most damningly, Khan’s office stated there are “reasonable grounds” to believe hostages were kept in inhumane conditions, and some were subjected to sexual violence, including rape, while held captive as also during the October 7 attack. It will be hard for those protesting about Israel’s “crimes against humanity” to ignore this as there are interviews of survivors. But will anyone (or ICC) hold the ‘State of Palestine’ responsible for allowing kidnapping and alleged rape?
Interestingly, Palestinians have voiced reservations about Khan before and may regard his putting Israel and Hamas in the dock together as more proof of the bias they perceived when he visited the area in December 2023. They accused him of not listening to Palestinian victims enough and alleged he was focused on Hamas while ignoring Israel’s “grave crimes”. They also resented his visiting the places Hamas attacked but not “illegal” Israeli settlements on the West Bank.
Any move to implement the warrants—if Khan’s request for them is accepted—will also only exacerbate the tensions between Hamas and the other representative of Palestinian causes, the Fatah, whose writ does not run in Gaza. There is no way Hamas cadres in Gaza and elsewhere will volunteer to send their top leaders to The Hague to stand trial, or allow Fatah to do so. So where does that leave the ICC regarding any “action” against Netanyahu and Gallant? Nowhere.
So why has a seasoned lawyer like Khan precipitated this impasse? By his own admission, as an Ahmadiyya, he has had a ringside view of persecution. So maybe despite his long innings in international legal procedures, he is a diehard optimist and actually hopes political leaders and terror bosses will present themselves at The Hague to be judged for their ‘crimes’. Or maybe he is a clever pessimist who wants to show up the innate toothlessness of such international fora.
The author is a freelance writer. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.
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