On Monday, 20 May 2024, the Prosecutor of the International Criminal Court (ICC) in The Hague, Mr. Karim Khan KC, announced his intention to ask the Court’s Pre-Trial Chamber to issue arrest warrants against Israeli leaders including Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar (Head of the Islamic Resistance Movement (‘Hamas’) in the Gaza Strip), Mohammed Diab Ibrahim Al-Masri, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail Haniyeh (Head of Hamas Political Bureau), for war crimes and crimes against humanity committed in Gaza.
This has provoked strong reactions. The Israeli government and Parliament have condemned the move. The US President called the decision ‘outrageous’. Political leaders in the US have threatened to retaliate with sanctions against ICC personnel. The UK Prime Minister called the move ‘unhelpful’. Hamas has also rejected the decision.
In our view, issuing warrants against Israeli leaders at this time is highly problematic.
ICC Lacks Jurisdiction in Gaza
The ICC’s role in relation to the Palestinian-Israel conflict is highly controversial. The Court was established in 2000 to investigate and prosecute individuals for war crimes, crimes against humanity, and genocide. It only has powers in relation to states that are parties to the Rome Statute. Many states (including Israel and the USA) are not a party to the Rome Statute. The Palestinians have been trying for decades to engage the Court to prosecute Israeli leaders. In 2021, in a controversial ruling, the Court decided that, even though ‘Palestine’ is not a state under established principles of international law, the fact that Palestine has obtained ‘non-member observer state’ status in the UN means that it was entitled to join the Rome Statute, and therefore the Court has jurisdiction to prosecute Israelis for crimes committed on the territory of Palestine (including Gaza). Israel and many other states object that the Court has no powers relating to alleged Israeli crimes on Palestinian territory. In our view, this decision undermines the basic principle underlying the Court, namely that it only has the powers that sovereign states confer on it. Palestine is definitely not (yet) a sovereign state, and Israel is not a party to the Rome Statute—so neither can have conferred any powers on the Court. The ICC simply has no business in Gaza.
Nevertheless, since October 2023, the ICC Prosecutor Karim Khan (a British/Pakistani lawyer) has stated publicly that the ICC is investigating both Israeli and Hamas leaders and will prosecute them if it finds that they are committing crimes.
Even if it is accepted that the Court has jurisdiction, issuing arrest warrants at this time would open the Court to criticism for many reasons.
Politicisation of the Court
The Court is already widely criticised for being ineffective and inefficient. With a multi-million dollar budget and a staff of hundreds, the Court has only managed to achieve a handful of convictions in the last twenty years. Choosing to focus on Israeli leaders will expose the Court to the claim that it has become a political instrument used by Israel’s enemies, including the Palestinian leadership, to delegitimise Israel and undermine its lawful military objective to destroy Hamas’ capabilities. If the ICC wants to protect its reputation as an independent and trustworthy tribunal based on the rule of law, it will not take one-sided steps.
Complementarity
The ICC only has power to act if the national court of the alleged criminal is unwilling or unable to investigate and prosecute (the principle of ‘complementarity’). Israel has a robust legal system and diligently investigates any alleged crimes or violations of the law. Therefore, it is hoped that the Prosecutor will refrain from issuing any arrest warrant against Israeli nationals unless and until he issues a ruling on the matter of complementarity, which is one of the pillars of the ICC criminal system.
‘War Crimes’ and ‘Crimes Against Humanity’
The ICC was established to ensure an end to impunity for “the most serious crimes of concern to the international community as a whole”. Israel is exercising its legitimate right of self-defence in Gaza. Inevitably, Israeli leaders and soldiers will make mistakes and maybe even violate international humanitarian law or even commit crimes. Such violations should be addressed and punished where appropriate. But the Court was established to prosecute the worst criminals who deliberately flout the law and commit the most heinous crimes. It is a travesty of justice to isolate Israel for such heinous crimes when it is fighting a massive war against Iran and its proxies and allies in the region.
Evidence of Crimes
Issuing an arrest warrant would mean the Prosecutor believes he has conclusive evidence that crimes have been committed. However, it is impossible to establish that Israel is committing war crimes or other violations of international law. Concerning the crime of genocide, the International Court of Justice (ICJ) recently ruled that it cannot be proved at this time that Israel is committing the crime of genocide. Other war crimes mentioned in the Rome Statute can only be proven if a Court can examine and reach conclusions on all the facts of specific cases. Legal and military experts remind us that Israel has done more in the past six months to protect Palestinian civilians than any other army has done in the context of complex urban warfare, more remarkable given Israel is fighting an enemy (Hamas) that intentionally violates international law to maximise civilian casualties. The facts are simply not yet available.
An Arrest Warrant at this Stage Would be Counter-Productive
An ICC intervention at this time to brand Israeli leaders as war criminals will also be counter-productive. It will not change Israel’s behaviour and may simply embolden Hamas to refuse to release the hostages. The war in Gaza is at a critical point. Israel is preparing to enter Rafah in southern Gaza to seek to eliminate the remaining Hamas battalions hiding in tunnels under the city. Israel is also engaged in complex negotiations with Hamas for the release of Israeli hostages. Foreign diplomatic officials like US Secretary of State Antony Blinken and the UK’s Foreign Secretary David Cameron expressed their hopes last weekend that Hamas would accept Israel’s latest ‘extraordinarily generous’ offer for a hostage deal that would see a 40-day pause in fighting and the release of potentially thousands of Palestinian prisoners in exchange for 33 hostages in an initial phase.
Criminalising the Conflict Feeds Antisemitism
More problematically, criminalising this conflict will inevitably feed into the narrative that Israel and the Jewish people are criminals and thus fuel the flames of antisemitism around the world.
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