Karim Khan's decision this week to publicly request arrest warrants for leaders of Hamas and Israel will be one of the most important and controversial of his career. .
Mr. Khan accused three Hamas leaders of war crimes and crimes against humanity in connection with the October 7 attack on Israel and hostage taking. He also accused Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant of war crimes and crimes against humanity, including the starvation of civilians during Israeli military operations in Gaza. A panel of three judges will now consider whether to issue a warrant.
While some countries welcomed the news as a sign that all individuals are equal before the law, regardless of state or status, others, including the United States, Israel's most important ally, It condemned the charges and accused Mr. Khan of false parity in the writ petition. At the same time, for the leaders of Hamas and Israel.
Mr. Khan did not have to publicly announce his application for a warrant. He could have waited until the warrant was issued, as was the case last year against Russian President Vladimir V. Putin, but that process can take weeks or even months.
So why has he gone public so publicly now, issuing not only a news release but also social media videos and a pre-recorded interview with CNN?
The answer lies, in part, in the highly polarized nature of this conflict. Any legal intervention in this dispute will be subject to intense scrutiny. It also concerns what prosecutors hope to achieve as military action continues in Gaza, famine looms and hostages remain held captive.
As things stand, the chances of Mr. Netanyahu or Mr. Gallant being arrested on these charges are almost zero. Even if a warrant is issued for their arrest, they will be safe as long as they do not travel to an ICC member state. Israel does not recognize the ICC or its jurisdiction over the Gaza Strip, and the ICC itself has no arrest powers. The prospects for detaining Hamas leaders are equally slim.
But the ICC, established in 1998, is tasked with pursuing cases even when there is little chance of cooperation from the targeted individuals or the states in which they live.
Information disclosure as a deterrent
When I asked the prosecutor's office why they decided to make it public now, a spokesperson said in an email that the reason was that Mr. He said it was because of “grave concerns about the situation.”
Where war crimes have been committed, legal proceedings are urgent because they have the potential to prevent further harm. The ICC's role is not limited to prosecutions, but also to investigating and, where warranted, trying individuals accused of the most serious crimes. rear It aims not only to prosecute cases where war crimes have been committed, but also where crimes are still occurring in the hope of stopping or deterring further violations.
Since the early weeks of the war, Khan has sought to use his role as a bully pulpit to do just that. In his speech in Cairo in October, he warned Hamas that hostage-taking was a crime under the ICC Rome Statute and a serious violation of the Geneva Convention, and called for the immediate release of all hostages. He asked for a safe return. family.
In the same statement, he described relief trucks lined up at the Rafah checkpoint, preventing supplies from reaching civilians in Gaza. “Obstructing the delivery of relief items as provided for in the Geneva Conventions may be a criminal offence within the jurisdiction of the Court,” he said, and called on Israel to “make visible efforts, without further delay, to ensure that civilians receive basic food, medicines and anesthetics.”
Khan said in an interview with CNN on Monday that his message to the parties to the conflict was: “Comply now and don't complain later.” But Hamas has not released the hostages and Israel continues to block aid supplies, leading to a situation where “children are starving,” he said.
transparency
The staging of Monday's announcement, including Mr Khan's media appearances and the publication of a separate report by an independent panel of experts, was aimed at presenting the evidence of the charges as fully as possible and pre-empting some of the criticism. It looked like he was doing it. Must be followed.
“Karim Khan must maintain the legitimacy of the prosecutor's office and the International Criminal Court,” said Kevin John Heller, a professor at the University of Copenhagen who serves as the prosecutor's special adviser on war crimes. Heller said he was giving his opinion, not “insider information” about the prosecutor's motives, adding: “This involves a sitting head of state and a sitting defense minister in a Western-leaning country that has very powerful Western friends.”
In an opinion piece published in the Financial Times, the panel of legal experts also stressed the need for transparency, writing that “this dispute is perhaps unprecedented in the way it has given rise to misunderstandings about the ICC's role and jurisdiction, a particularly divisive debate and, in some cases, even anti-Semitism and Islamophobia.”
“Erasing nationality with an airbrush”
U.S. officials were quick to criticize Khan for simultaneously announcing warrant requests against leaders of the U.S.-designated terrorist group Hamas and the leader of the democratic state of Israel. Secretary of State Antony J. Blinken called the warrant request “shameful.” “We reject the prosecutor's equating of Israel with Hamas,” he said in a statement Monday, referring to Khan's decision to “appear on cable television.”
Prime Minister Netanyahu also said in a statement about Khan's actions the same day that “it is common to 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” the attempt to “issue arrest warrants for several leaders of the Palestinian resistance movement and equate the victims with executioners.”
Supporters of the ICC argue that the presentation is inconsistent: After laying out specific charges against three Hamas leaders, the prosecutor then listed entirely different charges against Netanyahu and Gallant in another section.
But the decision to make the requests simultaneously was in some ways a public demonstration by Khan that he would not discriminate in his application of the law.
“If the ICC upholds this idea that the rule of law applies equally to everyone, then when there is evidence of crimes committed in one context and another, it should treat both equally.” said Rebecca Hamilton, a law professor at American University. Failure to do so, he said, “sends a message: 'If you're an ally of the United States, we're not going to challenge you.'”
In an interview with CNN, Khan said he was told by senior elected leaders that the ICC should focus on African crimes and “thugs like Putin.” He was furious at the idea that courts should treat perpetrators in wealthy democracies differently.
“What I've tried to do recently is look at the evidence, look at the acts, look at the victims and blur the nationality,” he said.
Some critics of the Supreme Court have questioned why prosecutors would seek an arrest warrant for Netanyahu but not for Syrian President Bashar al-Assad, who stands accused of war crimes against his own people. The simple answer is that the Supreme Court does not have jurisdiction over Syria.
Israel is also not a member of the ICC, but the court's jurisdiction in Gaza rests on the fact that Palestine was granted observer status at the United Nations in 2012, making it a member of the ICC and able to request investigations from the court. It originates from The situation in Gaza and the West Bank since June 2014.
A step on a long and unknown journey
The case will be one of the most serious tests the ICC has ever faced of its credibility and, ultimately, of the principles on which it was founded.
For now, the most likely outcome is political: The role of prosecutors is influential in some countries, and their decisions could stigmatize people accused of crimes and put pressure on foreign allies.
But the political impact of this stigma is not necessarily simple. There are already signs that the charges are rallying Israelis to Netanyahu's side and Palestinians to Hamas. In the short term, the warrant requests could tighten the screws on each party's current strategies, prolonging the conflict rather than shortening it. The long-term effects are harder to predict.