ICC Request for Arrest Warrants Against Israeli, Hamas Leaders: The Good, The Bad, And The Ugly
Karim Khan's request for arrest warrants against two Israeli and three Hamas officials may not be perfect, but it is major progress for an international system that few have faith in.
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On Monday, the Prosecutor of the International Criminal Court (ICC) Karim A.A. Khan submitted a formal request to the Court for arrest warrants for five individuals: Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh; and Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.
The request, as might be expected, set off a firestorm of both support and condemnation from all corners. The list of proposed indictees and the charges need to be examined soberly and fairly. That is not only true in order that justice might be served, but because Israel’s actions in Gaza, the precipitating attack on October 7 by Hamas and other armed Palestinians groups and individuals, and the circumstances around all of it present perhaps both the greatest challenge to the international legal system and the greatest opportunity to strengthen it in recent memory.
There’s a good deal to digest in this development. It’s important that we do not get ahead of the process: all that happened was that the ICC prosecutor requested the arrest warrants. The Court itself must still decide whether to issue those warrants or not, although it would be surprising if they decided not to do so at this point.
Even if warrants are issued, only Sinwar and Deif are currently believed to be in an area, Gaza, which is directly under the Court’s jurisdiction. Israel and Qatar, which is where Haniyeh is, are not members of the Court. That doesn’t mean the Court has no jurisdiction; the Court has stated, based on a report by a panel of experts in international law, that it has jurisdiction over crimes committed in Palestinian territory since Palestine became a Court member in 2014, including crimes committed there by Israeli nationals, even though Israel is not a member.
But in practice, the ICC cannot execute warrants itself, so it cannot arrest suspects in non-member countries. It relies on member states to conduct such arrests, and that is problematic if the suspects are still in power, or the state is resistant to the charges. On the Palestinian side, even if there were willingness to arrest Sinwar and Deif on the part of the PA, there is obviously no apparatus in Gaza to arrest them.
So, there are a lot of factors to weigh. Let’s begin with the positives.
The Good
Khan’s decision is obviously historic. Until 2022, virtually everyone the ICC ever indicted was African, a fact that was deeply problematic and blatantly racist. Then, after Russia’s invasion of Ukraine, several Russian officials, including Vladimir Putin, faced arrest warrants.
While that might have taken some of the blatant racism off the face of the Court, there remained a clear division between countries that were part of the U.S. circle, or so-called “western countries,” and those who were not. It is a horrible stain on the very concept of international law, a clear illustration of the lack of equality under the law based on which side of the global balance of power a given perpetrator stood.
An indictment of Israeli leaders is a profound statement of intent that the law should be applied equally, regardless of who anyone might perceive as the “good guys” or the “villains.” It’s no more than a step in the right direction, and the ICC’s record is still obviously and horribly biased. But a first step must be taken, and Israeli leaders being justly and credibly accused of war crimes is almost as significant in this regard as Americans being held to account, as they, and all perpetrators of war crimes should be.
Khan’s decision to request warrants for both Israeli and Hamas leaders has been criticized not only by Israel and the U.S., but also by Hamas and supporters of Palestinian rights. All are wrong in their critiques.
The basic complaint is about “equivalence.” Israel and its supporters argue that there can be no equivalence between “terrorists” and a “democratic government.” Some supporters of Palestinian rights argue that there can be no equivalence between victim and victimizer.
On a moral level, we can have those conversations. On a legal level, they must not be given weight. Law means nothing if it is not applied to all equally. The fact that someone might be looked at as a noble person, a hero even, does not mitigate their action if they commit a crime. Only the facts of the case can do that.
If a crime is committed against me, that does not grant me license to commit a crime myself in response. It must be no different when considering war crimes.
Khan’s arrest request spells out specific crimes that have been committed by Hamas on October 7 and by Israel since that date. Israel argues that by pursuing both it sets up a “false equivalence.” But, of course, if Israel alone were targeted, they would argue they were being “singled out,” as we have seen Israel argue countless times. It is, therefore, a disingenuous argument that is meant to obscure the real contention: that Israel should be immune from accountability regardless of its crimes.
Hamas’ argument that the warrant requests present a false equivalence is also disingenuous. Back in January, leading Hamas spokesperson and former head of its political wing, Mousa Abu Marzouk, said, “Since 2015 Hamas has accepted the jurisdiction of and cooperated with the on-going investigation by the International Criminal Court into Israel and Palestinian resistance movements, including our own. Israel has not. Since 2015 Hamas has repeatedly expressed its interest in appearing before and being judged by the ICC not on the basis of unsubstantiated allegations and screams but evidence and facts. Israel has not.
“This could be resolved quickly and easily. Hamas stands ready to appear before the ICC with witnesses and live testimony and bear the burden of any judicial finding against it or its members after a full and fair trial with rules of evidence; with examination and cross examination into we have done or not over the many years of our leadership as a national liberation movement. Is Israel?”
Now that this has become reality, Hamas has changed its stance and denounced the ICC for doing exactly what Abu Marzouk suggested just a few months ago.
Some have also argued that Hamas leaders should not be subject to arrest because they have the right to resist occupation. It is true, Palestinians have the right to resist the brutal occupation and apartheid they have suffered under since 1948. That right absolutely includes armed resistance.
But that right to resist is not absolute and unbounded. The actions taken on October 7 were a mix of legitimate resistance and war crimes. It was absolutely legitimate under the right to resist for Palestinians to breach the barrier that Israel has used to besiege Gaza for seventeen years. It was absolutely within their right to resist to target Israeli security and military forces and other apparatus of the occupation. It is even excusable under international law for there to have been collateral civilian damage, even deaths, if they occurred during legitimate operations, were unintentional, and occurred despite care being taken to avoid them. That is what the familiar terms “distinction” and “proportionality” mean in the context of conflict.
But Hamas and the other groups and individuals who entered Israel that day went well beyond the right to resist. The arrest warrants stay very much within those boundaries. Indeed, most of the crimes listed pertain to the kidnapping of people from Israel and their treatment in captivity, all of which are clear crimes and are not mitigated in any way by the right to resist.
Equivalence, which both sides are now complaining about, is, in fact, indispensable to any legitimate system of law. The ICC is right to apply it here, regardless of where anyone’s sympathies lie.
Lastly, it is encouraging that Khan, who was supported by the U.S. at Israel’s behest to replace a Prosecutor, Fatou Bensouda, that Israel disliked, brought this request.
The Bad
While Khan did a lot right, there were problems with the warrant requests as well.
The most glaring issue is with the people named in the requests. The inclusion of Ismail Haniyeh is particularly notable, as he has been named as someone who was not involved in the planning and execution of the October 7 action and certainly has little if anything to do with events in Gaza since. Haniyeh, who lives in Qatar these days (Qatar, it is important to note, is also not a member of the ICC), is the leader of Hamas’ political wing, but has mostly been engaged in international affairs, dealing with friendly governments, and negotiating with the PLO.
His inclusion here is therefore quite puzzling. Also puzzling is the brief list of Israeli officials being charged. Israel’s war cabinet, which includes opposition leader Benny Gantz, is not always in agreement, but the major decisions on the conduct of the war have always been presented as unanimous. So why was Gantz excluded?
While other Israeli leaders don’t have the decision-making power of the war cabinet, there are clearly grounds to try some of them for war crimes, including incitement to genocide. Bezalel Smotrich and Itamar Ben Gvir are obvious candidates there. Some have also suggested that Israeli President Isaac Herzog, who famously claimed “there are no innocent civilians in Gaza,” could also be accused of the same crime.
The inclusion of Haniyeh and exclusion of other Israeli leaders suggests there may have been a desire to appear to come down more strongly against Hamas, which could potentially undermine the argument of equality under the law. Put plainly, Gallant and Netanyahu are far from the only clear criminals here, even just in terms of the top leadership.
Some have argued that the ICC should also have charged the Israelis with genocide. But, while the incitement from Smotrich, Ben Gvir, and Herzog was straightforward, I can understand that the ICC doesn’t want to get out ahead of the International Court of Justice (ICJ). It makes sense to me that it waits until the ICJ rules on the question of genocide before it charges anyone with that crime.
But incitement to genocide is a crime in and of itself, and, especially in the context of an armed conflict, does not depend on there being an actual genocide (though, in my judgment, what’s happening in Gaza is just that and has been from day one).
Also, most of the crimes with which the Hamas leaders are being charged stem from the kidnappings on October 7. But what about the far greater number of Palestinians who have been kidnapped without justification, abused in Gaza, transported to prisons in Israel, tortured, and, in some cases, maimed or even killed?
I won’t get too far into the specific charges that were brought, as the published arrest requests don’t elaborate on the specific evidence on which they’re based. Also, more charges may yet be filed, just as more warrants may yet be issued.
But for all the very loud, even hysterical complaining from Israel and the contemptible statements from U.S. President Joe Biden, among others, it’s hard not to conclude that Khan went more lightly on Israel than he could have while bringing all the charges he could against Hamas.
The Ugly
As important as this development may be for the ending of Israeli impunity, it has even bigger implications.
The entire system of international law, as well as the essential building blocks of some kind of orderly international system, have been under relentless assault for decades. The United States and Israel have been the two most prominent leaders of that assault.
For all the horrifying events of the 20th century, the assemblage of international institutions built after two World Wars held some hope for a better world. But the basis of that world must be that might does not make right, and that no person or state can be held to be above the law.
Those are lofty standards, bars which even individual states often fail to meet. But they are the standards we must aspire to and eventually reach if we are to live in a more just, peaceful, kind, and egalitarian world. Indeed, given the significant challenges of injustice, of climate change, of war, violence, and poverty we face in the 21st century, our very survival as a species may depend on it.
But the United States cannot tolerate restraints on its actions. Both major American parties act, albeit in quite different ways, to remove constraints on their powers domestically, but will brook no boundaries on the world stage.
Israel, of course, can no more abide international justice than more blatant authoritarian regimes or other segregated or apartheid states can. Its status as an ethnocracy cannot withstand an impartial and balanced international system. Naturally, its brutal treatment of the Palestinians over the last 76 years and the massive violence it has unleashed on the civilian population of Gaza since October 7 cannot bear the scrutiny of law.
So, it was entirely predictable that the U.S. and Israel would unleash a barrage of rage at the ICC warrant requests. It is also why the warrants, and subsequent processes, absolutely must proceed in an unhindered and proper manner.
The international system, especially the legal system, is terribly weak. Much work will be needed if it is ever to become a force for justice in the world. Yet that work cannot be successful if people do not have faith in the system.
Few do, and there is little reason they should. The ICC, in particular, has been a tool of western power since its inception, even while the United States refuses to be a party to it and rejects its authority. Yet the U.S. is more than happy to use the ICC against Russia or against African leaders who do not follow its diktats.
The hypocrisy is plain. The impunity the Court has implicitly given to Israel because of American pressure and despite the fact that Palestine is a member of the Court casts a shadow over the entire international legal system. People simply have little faith that this system will produce anything resembling justice.
If Netanyahu and Gallant face trial at the ICC some of that desperately needed faith could be restored, although there would still be a long way to go. While the ICC has no police force and could not arrest the two Israelis, the test will be if they can go to other countries, European countries, that are members of the ICC safely. It’s worth recalling in this context that both Brazil and South Africa have politely requested that Vladimir Putin not come to their countries for events, as this would put them in the position of being obligated to arrest him.
If at least that much constraint can be put on Israeli criminals despite the objections of the United States it would be a meaningful message to the world.
But if not, if the Court is intimidated by American threats and sanctions, as it has appeared to be in the past, that might mean the last scraps of hope people have for an international system of justice may well disappear. There is a real risk that if the ICC is seen as impotent or unwilling to follow through on the process their own Prosecutor has begun, the entire international system will be left with no legitimacy at all.
Americans can help by supporting the law and speaking out forcefully against our leaders who have already attempted, in true thuggish fashion, to bully the ICC into silence. They will most certainly double down on those efforts. They must not succeed.
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