ICC seeks Israeli and Hamas arrest warrants

Amira Howeidy , Tuesday 21 May 2024

The decision by the prosecutor of the International Criminal Court to seek arrest warrants against Israeli politicians has been hailed as a historic move in defying Israel’s impunity, reports Amira Howeidy

ICC seeks Israeli and Hamas arrest warrants

 

Prosecutor of the International Criminal Court (ICC) Karim Khan filed applications for warrants of arrest against Israeli officials including Prime Minister Benjamin Netanyahu and Hamas leaders on Monday.

Khan said the applications were submitted before Pre-Trial Chamber I of the ICC on the Situation in the State of Palestine.

The move comes more than two weeks after news of the court’s intentions were leaked to Israel, which threatened to retaliate should it proceed with its applications. The Hague-based court has since been under pressure from Israel’s Western allies and has received threats against it from US Senators.

Khan’s applications for arrest warrants include Hamas leaders Yehia Sinwar and Mohamed Deif in Gaza, in addition to the group’s Political Bureau Chief Ismail Haniyeh who is based in Qatar.

They face eight charges in connection with the group’s cross-border operation on 7 October last year, which include crimes against humanity and war crimes.

The ICC prosecutor named two Israeli officials in his applications for arrest warrants: Netanyahu and Israeli Defence Minister Yoav Gallant, who are indicted on seven charges including war crimes and crimes against humanity carried out in Gaza since 8 October 2023.

The announcement has sent shock waves through Israel and been described by observers as historic, since throughout the 76-year-old Palestinian-Israeli conflict the Western nations, led by the US, have granted Israel impunity.

Khan’s application cited the ICC’s 2021 decision to exercise jurisdiction in the State of Palestine, which extends to Gaza, the West Bank, and East Jerusalem. While Israel is not a party to the Rome Statue of the ICC, Palestine is a party to it.

The ICC prosecutor’s statement explained that his office has jurisdiction over crimes committed by “nationals of States Parties and by the nationals of non-States Parties on the territory of a State Party,” in a reference to Israel.

His statement made it clear that additional possible war crimes are under investigation by his office, signalling that he might submit further applications for arrest warrants.

As an additional “safeguard” to the existing arrest warrant applications, Khan said that they were supported by the advice of a panel of impartial experts in international law, including two former ICC judges, in support of the evidence and legal analysis of his action against Israeli and Hamas leaders.

Khan named eight advisory experts that included Danny Friedman, a British Jewish lawyer who has publicly called for a ceasefire in the war on Gaza and has criticised Israel for committing war crimes in Gaza.

While Khan’s statement did not mention the Israeli occupation of the Palestinian Territories, the panel of experts advising him released a 13-page report that anchored its opinion on the fact that there is a “belligerent occupation by Israel” of at least some Palestinian territory.

Contesting the Israeli narrative that the conflict began on 7 October, the panel said that “the international armed conflict” between Palestine and Israel “began at the latest” on 7 October when Israel first started responding to the Hamas attack on its territory.

In the charges against the Hamas leaders, Khan’s application cites extermination, murder, taking hostages, rape and other acts of sexual violence, torture, cruel treatment, and outrages upon personal dignity. These charges were outlined in the context of Hamas’ 7 October operation in taking Israeli hostages and their captivity since.

Since the applications name only two Israeli officials, unlike Hamas’ three, and list only seven charges, compared to Hamas’ eight, some observers said they detected “both side-ism” in the applications.

“Although the prosecutor says he ‘seeks to charge two of those most responsible’ and the investigation is ongoing, no one can ignore the asymmetry in the infliction of violence, and the ferocity and length to which the Israeli leaders committed their crimes,” said Nimer Sultany, reader in public law at SOAS in London.

Sultany said he found the charges of torture against Hamas, but not Israel, surprising given that the latter has tortured thousands of Palestinian detainees, including over 27 who have died in custody, he wrote on X, formerly Twitter.

Hamas demanded that the ICC prosecutor withdraw the allegations against its leaders, arguing that Khan had equated the “executioner with the victim”. It also said that the arrest warrants for the Israeli officials had come seven months too late after the Israeli occupation had committed thousands of crimes in Gaza.

Although they are one count shorter than those against Hamas, the charges against the Israeli officials — the starvation of civilians, willfully causing great suffering or serious injury, willful killing, extermination and or murder, persecution and other “inhumane acts” — translate into the definition of genocide and ethnic cleansing, though these are words that Khan’s application shies away from, observers say.

In this same vein, the ICC’s panel of experts said that Israeli war crimes committed in Gaza are in the context of a widespread and systematic attack against the civilian population of the besieged enclave and “pursuant to State policy”, meaning that they are not limited to the policies of individual Israeli officials.

At the same time, the International Court of Justice (ICJ) has been reviewing a case brought by South Africa against Israel since January for violating the Genocide Convention, known in international law as the crime of all crimes.

Indignant reactions in Israel and the US came in the wake of Khan’s “outrageous” implication of an equivalence between Israel and Hamas, but the ICC prosecutor’s panel of experts appeared to refute these in an opinion piece published by the UK Financial Times.

There is no conflict that should be excluded from the reach of the law, they wrote. “No child’s life valued less than another’s. The law we apply is humanity’s law, not the law of any given side. It must protect all the victims of this conflict and all civilians in conflicts to come,” the piece published on Monday said.

US President Joe Biden issued a statement referring to Khan’s application as “outrageous” and rejecting the “equivalence” between Israel and Hamas. He reiterated US support for Israel and was followed by UK Prime Minister Rishi Sunak, who described the ICC move as a “deeply unhelpful development”.

Netanyahu said the arrest warrants were “absurd” and an example of the “new anti-Semitism”.

In Europe, where the Rome Statute was born 26 years ago, a decision appears to have been made to side with the ICC prosecutor despite some caveats.

Germany, known as Israel’s staunchest European ally, said it supported the ICC, describing it in a statement by the German Foreign Ministry as “a fundamental achievement of the international community”.

Although the statement supported Israel’s war on Gaza and denounced Hamas, it said Germany respects the ICC’s independence and procedures.

As Al-Ahram Weekly went to press, France, Belgium, and Ireland all announced their support for Khan’s applications for arrest warrants. Irish Prime Minister and Defence Minister Micheal Martin said his country condemned threats against the ICC and its officials.

“Its role in ending impunity is essential,” he said on Monday.

Former top UN official Craig Mokhiber, who resigned in October in protest at the international institution’s failures in Gaza, said the ICC action against Israeli officials was a “good start” but is incomplete under the Rome Statute.

The charges should be supplemented to include additional charges against Netanyahu, Gallant, and other Israeli officials to include the crimes of genocide, forcible transfer, unlawful imprisonment, torture as a crime against humanity, sexual violence, disappearance, apartheid, extensive destruction and appropriation, hostage taking, attacks on civilian objects and humanitarians, deportation, attacking protected buildings, mutilation, denial of quarter, pillaging, poisoning, gassing, prohibited weapons, outrages on dignity, and human shielding, Mokhiber said.

“Nevertheless, this is another historic crack in the 76-year wall of impunity that the West has built for Israel’s crimes,” he said.

“This time, the world will not accept impunity. International institutions will do their job, or they will fade away into an irrelevant footnote in history.”

* A version of this article appears in print in the 23 May, 2024 edition of Al-Ahram Weekly

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