The decision of Karim Khan, the International Criminal Court’s chief prosecutor, to publicly seek arrest warrants for the leaders of Hamas and Israel this week will be one of the most significant and contentious of his career.
Khan accused three Hamas leaders of war crimes and crimes against humanity relating to the Oct. 7 attack on Israel and hostage taking. He also accused Israel’s prime minister, Benjamin Netanyahu, and its defense minister, Yoav Gallant, of war crimes and crimes against humanity during Israel’s military operation in Gaza, including the starvation of civilians. Now a three-judge panel will consider whether to issue the warrants.
Some countries welcomed the news as a sign that all individuals, regardless of their state or status, are equal before the law, while others — including the United States, Israel’s most important ally — denounced the charges and accused Khan of false equivalence in pursuing warrants for Hamas and Israeli leaders at the same time.
Khan didn’t have to announce the warrant applications publicly. He could have waited until they were granted, as with the warrant for President Vladimir V. Putin of Russia last year — a process that can take weeks or months.
So why did he go public now and with such fanfare — issuing not only a news release, but also social media videos and a prerecorded interview with CNN?
The answer lies partly in the extraordinarily polarizing nature of this conflict, in which any legal intervention would be subject to deep scrutiny. It’s also about what the prosecutor’s office hopes to achieve as military action continues in Gaza, famine looms and hostages remain in captivity.
As things stand, there is almost zero chance that Netanyahu or Gallant will ever be arrested on these charges. Even if the warrants are issued, the men would be safe as long as they don’t travel to any I.C.C. member states, because Israel does not recognize the court or its jurisdiction in Gaza, and the court itself has no powers of arrest. Prospects of getting the Hamas leaders in custody are similarly dim.
But the I.C.C., which was established in 1998, has a mandate to pursue cases even when there is little likelihood of cooperation from the targeted individuals or the states where they reside.
Disclosure as deterrence
When I asked the prosecutor’s office why he had chosen to go public now, a spokesperson said by email that it was because of Khan’s “significant concern regarding the ongoing nature of many of the alleged crimes cited in the applications.”
If war crimes are taking place, the legal process carries urgency because it may prevent further harm. The role of the I.C.C., which investigates and, where warranted, tries individuals charged with the gravest crimes, is not only to bring prosecutions after war crimes are committed, but also to prosecute cases in which crimes are still happening, in the hope of halting or deterring further violations.
Since the early weeks of the war, Khan has tried to use his role as a bully pulpit to do just that. In an October speech in Cairo, he warned Hamas that hostage taking was a crime under the Rome Statute of the I.C.C., as well as a grave breach of the Geneva Conventions, and called for the immediate release of all hostages and their safe return to their families.
In that same statement, he described seeing aid trucks lined up at the Rafah crossing, unable to deliver supplies to civilians in Gaza. “Impeding relief supplies as provided by the Geneva Conventions may constitute a crime within the court’s jurisdiction,” he said, calling on Israel to make “discernible efforts, without further delay, to make sure civilians receive basic food, medicine, anesthetics.”
In his interview with CNN on Monday, Khan said his message to the parties of the conflict had long been “comply now, don’t complain later.” But, he said, Hamas had failed to release its hostages, and Israel had continued to impede aid supplies, leading to “starving children.”
Transparency
The choreography of the announcement on Monday, including Khan’s media appearances and the publication of a separate report by a panel of independent experts, seemed aimed at presenting the evidence for the charges as fully as possible, and pre-empting some of the criticism that was bound to follow.
“Karim Khan has to maintain the legitimacy of the office of the prosecutor and the International Criminal Court,” said Kevin Jon Heller, a professor at Copenhagen University who is a special adviser to the prosecutor on war crimes. Heller said he was giving his opinion rather than any “inside information” about the prosecutor’s motives, adding: “I think it is important for the public to have an even better understanding of the process in this situation than in all of the others, because it involves a sitting head of state and a sitting minister of defense in a West-leaning country with very powerful Western friends.”
The panel of legal experts published an opinion article in The Financial Times in which they also underlined the need for transparency, writing: “This conflict is perhaps unprecedented in the extent to which it has given rise to misunderstandings about the I.C.C.’s role and jurisdiction, a particularly fractured discourse and, in some contexts, even antisemitism and Islamophobia.”
‘Airbrush out the nationality’
American officials were quick to criticize Khan for simultaneously announcing requests for warrants against the leaders of Hamas, a U.S.-designated terrorist organization, and the leaders of Israel, a democracy. Secretary of State Antony J. Blinken called the warrant requests “shameful.” “We reject the prosecutor’s equivalence of Israel with Hamas,” he said in a statement on Monday, noting Khan’s decision to go “on cable television.”
Netanyahu also said in a statement about Khan’s actions that day, “How dare you compare the monsters of Hamas to the soldiers of the Israeli Army, the world’s most moral military?”
Hamas issued a statement saying that it “strongly denounces” the attempt to “equate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders.”
Supporters of the I.C.C. have argued that there was no equivalence in the announcement: The prosecutor laid out the specific charges against three Hamas leaders, and then, in a separate section, listed an entirely different set of charges against Netanyahu and Gallant.
But the decision to issue the requests simultaneously was also, in some sense, the point: a public demonstration that Khan would not discriminate in his application of the law.
“If the I.C.C. is to uphold this idea that the rule of law applies equally to everybody, then when it has evidence of crimes committed in one context, and another, it should treat both equally,” said Rebecca Hamilton, a law professor at American University. To do otherwise would risk “sending a message that ‘Well, if you’re a U.S. ally, then we won’t proceed with trying to challenge you,’” she said.
In his CNN interview, Khan described being told by a senior elected leader that the I.C.C. should focus on crimes in Africa and “thugs like Putin.” He bristled at the idea that the court should treat perpetrators from wealthy democracies differently.
“The way I recently tried to do things is look at the evidence, look at the conduct, look at the victims and airbrush out the nationality,” he said.
Some critics of the court have questioned why the prosecutor would pursue a warrant for Netanyahu but not, say, for Bashar al-Assad, the president of Syria, who is accused of war crimes against his own people. The short answer is that the court does not have jurisdiction over Syria.
Although Israel is also not a member state of the I.C.C., the court’s jurisdiction in Gaza comes from the fact that Palestine was granted observer status at the United Nations in 2012, allowing it to become a member state of the I.C.C. and request that the court investigate the situation in Gaza and the West Bank since June 2014.
One step in a long, uncharted journey
This case will be one of the most serious tests the I.C.C. has faced of its credibility and, by extension, the principles on which it was founded.
For now, the most likely consequences will be political. The prosecutor’s role carries enough weight in some countries that his decisions can confer stigma on those he accuses of crimes, and put pressure on foreign allies.
But the political consequences of such stigma aren’t always straightforward. There are already signs that the charges have caused Israelis to rally around Netanyahu, and Palestinians to rally around Hamas. In the short term, the warrant requests could harden the parties’ commitments to their current strategies, which could prolong rather than shorten the conflict. The long-term implications are harder to predict.
