ICC warrants against Netanyahu and Gallant may be the first of many aimed at Israeli officials

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. 

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.”