Karim Khan, KC, had been a defence lawyer for suspects at the International Criminal Court. Then he wore the shoe on the other foot when the 124 member states of the Court endorsed him as the new Prosecutor.
What has followed since February 2021 is a show of boldness to go where others had failed. Either that or the British lawyer is ignoring the politics that surround the working of the Court.
On Monday, he asked the Pre-Trial Chamber I of the International Criminal Court in the Situation in the State of Palestine to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his Defence Minister Yoav Gallant for war crimes and crimes against humanity.
He also made similar requests for senior leaders of Palestinian militant group Hamas. They include -to believe that three of Hamas’s most senior leaders Yahya Sinwar, the Head of Hamas in the Gaza Strip; Mohammed Diab Ibrahim Al-Masri, known more commonly as Mohammed Deif, the Commander- in-Chief of the al-Qassam Brigades of Hamas; and Ismail Haniyeh, the Head of Hamas’ Political Bureau.
It will be the second time under Khan's tenure that an ICC Prosecutor has sought arrest warrants for a sitting head of government or state. Last year, the Court agreed and indicted Russian leader Vladimir Putin for crimes allegedly committed in Ukraine.
He accused Nentanyahu’s government of implementing a response to Hamas attacks that led to more crimes against humanity and war crimes including starvation of civilians, willfully causing great suffering, willful killing, directing attacks on civilian areas, extermination and murder, persecution and other inhuman acts.
“My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas (together with other Palestinian Armed Groups) running in parallel,” Khan said in a statement on Monday.
“We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy. These crimes, in our assessment, continue to this day.”
While Israel is not a member of the ICC, Khan argued the Court has jurisdiction over the crimes because they happened inside Palestine or involved Palestinians as victims or perpetrators. He also argued both Palestine and Israeli are contracting states to the Geneva Conventions of 1949, which traditionally offer seminal legal basis for protection of civilians in wartime. Palestine is a member of the ICC.
Yet jurisdiction is not the only issue at hand. Over the years, the ICC has often run into problems pursuing perpetrators of crimes, some of who have been sitting heads of state or government. Soon after Khan issued a statement, the US termed the move shocking.
“The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” said President Joe Biden.
“And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.” Netanyahu himself rejected the move, warning it will not stop his government from seeking to rescue the remaining hostages still being held by Hamas.
That stance is a problem for the ICC: targeted suspects often see the Court as an impediment to national security policies. Khan had picked on a panel of international law scholar to pore over evidence which they used to advise him to request the arrest warrants.
“It is important to understand that the charges have nothing to do with the reasons for the conflict. The charges concern waging war in a manner that violates the long-established rules of international law that apply to armed groups and the armed forces in every state in the world,” the lawyers argued in a joint statement on Monday.
“And, of course, the warrant applications announced today are just the first step. We hope that the prosecutor will continue to conduct focused investigations including in relation to the extensive harm suffered by civilians as a result of the bombing campaign in Gaza and evidence of sexual violence committed against Israelis on October 7.”
They included Lord Justice Fulford, former vice-president of the Court of Appeal of England and Wales and former judge at the International Criminal Court, Theodor Meron CMG, a former judge and former president of the International Criminal Tribunal for the former Yugoslavia, Amal Clooney, barrister, adjunct professor at Columbia Law School and co-founder of the Clooney Foundation for Justice, and Danny Friedman, barrister, expert in criminal law, international law and human rights.
It also had Baroness Helena Kennedy, barrister, member of the House of Lords and director of the International Bar Association Human Rights Institute and Elizabeth Wilmshurst, former deputy legal adviser at the United Kingdom Foreign and Commonwealth Office and distinguished fellow of international law at Chatham House.
The judges of the Court will have to decide if the arrest warrants merit this. But the ICC is following into the footsteps of the International Court of Justice, which has been hearing a case filed by South Africa alleging genocide has happened in Gaza.
Since October 7 when Hamas launched an unprecedented attack in Israel, and Israel retaliated, at least 32,000 people have been killed, most of them civilians. The deaths and suffering have become a subject of world uproar including in the US itself where campus protests erupted last month.
However, whether these suspects will be arrested at all, if warrants are issued, will depend on cooperation of member states. As it is, the ICC has no jurisdiction in Israel. And the US, its strongest backer is also not a member of the Court. In 2019, then US President Donald Trump revoked visas of ICC officials after they began investigating the conduct of US troops during their time in Afghanistan.
Last year in March, however, the US cheered when Russian president Vladimir Putin and a senior official in his government were indicted by the ICC. Biden, at the time, indicated Putin had “clearly” committed war crimes including forcible transfer of populations in Ukraine, where Russia had invaded in 2022.
At the time, Moscow declared the move “outrageous” and warned it could arrest ICC officials if they set foot there. Russia, like the US and Israel, is not a member of the ICC.
Once criticism for the Court is that its arrest warrants can last a lifetime, unimplemented. For example, the Court in 2009 indicted former Sudanese President Omar al-Bashir for war crimes and crimes against humanity in Darfur. Bashir was able to travel to ICC member states Kenya, South Africa and Nigeria unhindered.
Two court decisions in Kenya and South Africa would later find officials at fault, but both sides argued separately, that they could not arrest a head of state they had invited and granted diplomatic immunity during his stay. Bashir remains incarcerated in Khartoum over other crimes, five years after he was ousted.
On Israel, however, it will be interesting to see how the world reacts. For one, indicting both Hamas and Israeli leaders shields the Prosecutor from appearing to take sides. But it could unite US and Israeli against a Court they loathe.
