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What’s missing in the historic ICC decision to bring Israeli leaders to justice for war crimes?

MEMO's political analyst Nasim Ahmad presents his op-ed about the historic ICC decision to bring Israeli leaders to justice for war crimes. On 20 May 2024, the chief prosecutor of the International Criminal Court, Karim Khan, requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for alleged war crimes and crimes against humanity. This unprecedented move marks the first time the ICC has targeted a sitting Western leader, signalling a potential shift in how the international community treats Israel's actions and the beginning of the end of the impunity Israel has enjoyed for decades. But what is missing in the ICC application?

May 21, 2024 at 8:00 pm

The chief prosecutor of the International Criminal Court (ICC), Karim Khan, made a historic decision yesterday by requesting arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. This unprecedented move may, in time, be remembered as the moment when Israeli impunity began to crumble.

For decades, Israel has operated with a sense of invulnerability, shielded by powerful Western allies, particularly the US. Despite numerous allegations of war crimes and human rights violations, the occupation state has seldom faced legal repercussions. The ICC prosecutor’s decision to seek arrest warrants, therefore, marks a significant shift in how the apartheid state is treated by the international community.

The warrants sought for Netanyahu and Gallant cover crimes of extermination and starvation as methods of war; the denial of humanitarian relief supplies; and deliberately targeting civilians in conflict. Additionally, Khan has applied for arrest warrants for three Hamas officials: Yahya Sinwar, the movement’s leader in Gaza; Mohammad Deif, the commander-in-chief of Al-Qassam Brigades, the Hamas military wing; and Ismail Haniyeh, the head of the Hamas political bureau.

READ: Borrell reminds ICC member states that they must implement rulings

While it was expected that Hamas members would be included in any arrest warrants issued by the ICC, the move to target Israeli officials has stunned almost everyone. The ICC has not previously taken such action against any sitting Western leader, let alone an Israeli.

“Drop by drop, step by step, this [impunity] is being removed, whether it’s through the International Court of Justice, whether it’s through BDS, and now this,” said Diana Buttu, a former legal advisor to the Palestine Liberation Organisation in an interview with Zeteo, referring to the ongoing Israeli genocide case at the ICJ and the Boycott, Divestment and Sanctions campaign.

“The ICC’s move is part of a broader trajectory that is slowly chipping away at Israel’s immunity from international law.”

Khan himself has acknowledged how he too has had to grapple with Israel’s impunity and push back against the politicisation of the court. Speaking to CNN’s Christiane Amanpour yesterday, the chief prosecutor revealed details of the pressure he has come under from western leaders.

“Now, of course, this situation, unfortunately, lives on the San Andreas Fault of international politics and strategic interests. And, of course, I’ve had some elected leaders speak to me and very, you know, be very blunt,” said Khan. He claimed that the same leaders told him that, “This court [the ICC] is built for Africa and for thugs like [Vladimir] Putin,” and not for western leaders.

Despite the political pressures and threats from various quarters, Khan emphasised that the ICC remains committed to fulfilling its responsibilities and upholding the principles of international law. In what appears to be a rebuke of the same leaders politicising the court and others who have accused him of anti-Semitism, Khan underscored that the ICC is a “child of Nuremberg”, and that it has a built-in response to the atrocities of the Holocaust and subsequent conflicts. He emphasised that the court’s role is to apply the law equally, regardless of nationality, religion or political influence. “Nobody is above the law,” he insisted, adding that no one has a “get out of jail free card” or a “free pass” to claim that the law doesn’t apply to them.

READ: Belgium welcomes ICC’s ‘important move’ to seek arrest warrant for Netanyahu

While the ICC’s intervention marks a historic moment and Khan is making commendable efforts to restore the court’s reputation and legitimacy, there are several obvious criticisms. The first is that the charge sheet lacks continuity with the work carried out by Khan’s predecessor, Fatou Bensouda. Since Palestine’s accession to the Rome Statute and its application to the ICC in 2014, there have been numerous calls for the investigation of Israeli war crimes and crimes against humanity in the occupied Palestinian territories. This move was influenced significantly by Hamas, rather than the Palestinian Authority (PA) controlled by Fatah. Former chief prosecutor Bensouda played a pivotal role in advocating for these investigations.

Bensouda announced the opening of a preliminary examination of the situation in Palestine in January 2015 to assess the possibility of a full investigation.

Over the years, she made multiple statements regarding the potential for Israeli officials to be held accountable for war crimes and crimes against humanity. In 2019, Bensouda’s annual report on preliminary examinations indicated a reasonable basis to believe that Israeli forces had committed war crimes in the occupied Palestinian territories. She cited the use of excessive force against Palestinian protesters in Gaza and the construction of settlements in the West Bank as examples. In April 2020, she reiterated that Israeli settlement activity in the West Bank constitutes a war crime under the Rome Statute and violates international law, affirming the ICC’s jurisdiction to investigate these matters.

Although the ICC application does state that Khan’s “office will not hesitate to submit further applications for arrest warrants if and when we consider that the threshold of a realistic prospect of conviction has been met” and that it is “advancing multiple and interconnected additional lines of inquiry,” the omission of the war crimes and crimes against humanity listed by Bensouda is inexplicable. This is especially so given that the ICJ has started public hearings on the “Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem”.

Khan has also been criticised for engaging in “both-sides-ism” by requesting arrest warrants for three Hamas leaders and only two Israelis. Buttu expressed this concern with Zeteo, arguing that the ICC is falling into the trap of false equivalence. The Palestinian-Canadian lawyer noted that there are more allegations against Hamas than against Israeli leaders and that the court is omitting crucial issues such as torture and genocide.

READ: ICC arrest warrants for Netanyahu and Gallant ‘correct,’ says Knesset member

Asked about this omission during his interview with Amanpour, Khan said that while genocide is not among the current charges, the investigation is still ongoing, and the ICC has not ruled out the possibility of adding genocide charges if the evidence supports such a move. He also mentioned the complexity of the situation and the lack of access to Gaza, which has hindered the investigation.

Khan assured his interviewer that the ICC will not hesitate to act if the evidence points towards genocide being committed.

Nevertheless, feeling the need to resort to “both-sides-ism,” as Buttu notes, risks obscuring the stark power imbalance between Israel, a nuclear-armed state, that is an occupying power with the backing of the world’s most powerful nations, and Hamas, a resistance movement that emerged as a response to Israel’s brutal military occupation. The false equivalence ignores Israeli war crimes that have persisted for over seven decades, long before Hamas even existed, not to mention the fact that during the past 17 years, Israel has confined the population of Gaza in conditions akin to a concentration camp, severely restricting their access to the outside world and essential requirements. Moreover, under the Geneva Conventions, people living under “foreign occupation” have the legitimate right to resist that occupation “by all available means, including armed struggle.”

The disparity in casualty statistics is significant. For every Israeli allegedly killed by Hamas on 7 October (many were killed by the Israel Defence Forces), Israel has killed at least 35 Palestinians. This skewed kill-ratio has been consistent for decades. Israel has killed more than 15,000 Palestinian children since October, with many more missing, maimed or orphaned. By early April, an additional 114 Palestinian children had been killed in the occupied West Bank alone, with 725 wounded. In comparison, Hamas is said to have killed 33 Israeli children on 7 October.

The scale of deprivation and destruction of civilian infrastructure inflicted by Israel is also unmatched.

Israel is actively starving Gaza’s population by denying food, fuel, medicine, water and humanitarian aid, measures Hamas could never even dream of imposing on Israelis. Furthermore, Israel has been forcibly displacing Palestinians from their lands for over 76 years to build Jew-only illegal settlements. Hamas has never displaced any Israelis or established Palestinian settlements on Israeli land.

None of this is to take away from the significance of the ICC application for arrest warrants against Israeli leaders. It is, indeed, a historic moment. While the road ahead is long and will no doubt be fraught with challenges, this development represents a major step forward towards ending Israel’s system of racial domination and apartheid. Despite its limitations and the criticism of “both-sides-ism”, Khan’s intervention offers a glimmer of hope that the universal principles of human rights and international law may finally be applied consistently, regardless of a nation’s or individual’s power and political influence.

READ: What is the International Criminal Court?

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.