The Economist (“The ICC’s threat to arrest Binyamin Netanyahu has shocked Israel“):
It had been been expected in Israel for weeks, but the moment was still a shock when it arrived. On May 20th the prosecutor for the International Criminal Court (ICC), Karim Khan, announced that he was requesting arrest warrants for Binyamin Netanyahu and Yoav Gallant, Israel’s prime minister and defence minister, along with the leaders of Hamas, the Islamist movement that launched the deadly attack on Israel on October 7th last year, on charges of war crimes.
The prospect of their leaders appearing in the dock along with the perpetrators of a massacre against them is unthinkable for Israelis. But it is a sign of the horror with which many in the world have come to view their government’s devastating war in Gaza. Mr Khan, a British lawyer, issued detailed and lengthy accusations against both sides. He opened with the allegations against the Hamas chiefs, Yahya Sinwar (pictured right), Mohammed Deif and Ismail Haniyeh, detailing the wanton murder, sexual assault and kidnapping of Israeli citizens. But the charges against the Israeli ministers were no less pointed.
Mr Khan noted that Israel has the right to protect its citizens, but he accused it of having pursued “starvation as a method of war” in Gaza. Israel has denied this charge, pointing to the aid convoys that have been allowed through. But this has mainly happened in the last couple of months and under international pressure. There is ample evidence that Israel has closed routes into Gaza and disrupted the supply of humanitarian aid. Earlier in the war Israeli ministers also made clear in public their intention to impose a “total siege” on Gaza. Mr Khan has chosen to focus on these war tactics, rather than the bombing of civilian areas. He has also chosen, at least for now, to target Israel’s political leaders rather than the generals of the Israel Defence Forces (IDF). Nor did the charge sheet include the allegation of genocide, which is being investigated separately by the International Court of Justice. Mr Khan may be sticking to crimes that are somewhat easier to prove.
This is only a first step. The judges in the ICC’s pre-trial chamber must now agree that there is sufficient evidence to issue the arrest warrants. Even if they do, Israel has not ratified the Rome Statute establishing the icc and so is under no legal obligation to hand over its leaders. Mr Sinwar and Mr Deif are hiding somewhere in Gaza and Mr Haniyeh rarely if ever travels to a country which is a party to the treaty. An actual trial in The Hague is extremely unlikely any time soon.
But it is still devastating, far more so for Israel, a country with a democratically elected government and aspirations to be part of the Western world, than for Hamas, a terrorist organisation. Some Western leaders have already criticised the icc for asserting an equivalence between the leaders of Hamas and Israel’s prime minister. However, if the prosecutor’s request is granted by the pre-trial panel, they would be legally bound as signatories to the Rome Statute to arrest Mr Netanyahu, should he travel to their countries.
WaPo (“ICC prosecutor seeks arrest warrants for top Israeli, Hamas figures“) adds:
The ICC is the only permanent international court that wields power to prosecute individuals for genocide, crimes against humanity and war crimes. Its announcement Monday was historic: Although Israel is not a signatory to the Rome Statute, upon which the court is founded, the arrest warrants, if issued, would nonetheless stigmatize the country’s senior leaders.
[…]
The timeline for a decision remained unclear Monday: Historically, the court has taken several months to decide whether warrants should be issued.
Current figures with outstanding ICC arrest warrants include Russian President Vladimir Putin, for the crime of unlawful deportation and population transfer from occupied areas of Ukraine to Russia, and the deposed president of Sudan, Omar Hassan al-Bashir, for crimes against humanity and genocide.
WaPo (“Biden calls ICC prosecutor’s decision ‘outrageous’“):
President Biden slammed the International Criminal Court’s decision on Monday to seek to issue arrest warrants for senior Israeli officials, calling the applications “outrageous.”
“Let me be clear: Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” Biden said in a statement. “We will always stand with Israel against threats to its security.”
Secretary of State Antony Blinken said in a statement Monday that the United States “fundamentally rejects” the ICC prosecutor’s decision to seek the arrest warrant against “senior Israeli officials, together with warrants for Hamas terrorists,” calling the equivalence “shameful.”
“The United States has been clear since well before the current conflict that ICC has no jurisdiction over this matter,” Blinken said. The United States and Israel are not signatories to the ICC and do not come under its jurisdiction.
Blinken also criticized the procedure leading to prosecutor Karim Khan’s decision as raising some “deeply troubling process questions” that “call into question the legitimacy and credibility of this investigation,” adding that the decision would do little to help “ongoing efforts to reach a cease-fire agreement.”
WaPo (“Muted response from world leaders to ICC prosecutor’s decision“):
Reaction from world leaders to the news that the prosecutor of the International Criminal Court has requested arrest warrants for the leaders of Hamas and Israel was relatively muted on Monday — outside of the United States.
[…]
A spokesperson for British Prime Minister Rishi Sunak called the prosecutor’s request “not helpful in relation to reaching a pause in the fighting, getting hostages out or getting humanitarian aid in.” The European Union has yet to comment publicly.
In a statement, the office of South Africa’s president welcomed the ICC’s decision. “The law must be applied equally to all in order to uphold the international rule of law, ensure accountability for those that commit heinous crimes and protect the rights of victims,” the president’s office said. South Africa previously accused Israel of genocide at a different international body, the International Court of Justice.
Human Rights Watch said the decision to seek arrest warrants “in the face of pressure from U.S. lawmakers and others reaffirms the crucial role of the International Criminal Court.”
It added that people in both Israel and the Palestinian territories have “faced a wall of impunity for decades.” The group said that this “principled first step by the prosecutor opens the door to those responsible for the atrocities committed in recent months to answer for their actions at a fair trial.”
ICC member countries should “stand ready to resolutely protect the ICC’s independence as hostile pressure is likely to increase while the ICC judges consider [Prosecutor Karim] Khan’s request,” Human Rights Watch said.
It’s almost a certainty that war crimes have been committed by Israeli forces; that’s the case for even the most professional militaries in any war of this scale. And there have certainly been policy decisions by the Israeli government that merit scrutiny under the laws of armed conflict.
That said, announcing an intent to arrest Netanyahu, Gallant, and Simwar simultaneously is outrageous and counterproductive. The October 7 massacre is indisputably a criminal act, whereas the accusations against Israel have to be weighed against the military value of the targets. The former requires essentially zero investigation. So, rather obviously, the announcement regarding Sinwar should have come months ago.
Lumping the two together creates a false equivalency that will undermine support for the ICC and the very concept of international law in the United States, the United Kindgom, Germany, and other important players in the system. It’s just foolish.
