Prosecutor, not ICC, seeks arrest of Israeli PM

To be clear, it is Karim Khan, the chief prosecutor of the International Criminal Court, not the ICC itself (as mistakenly reported by some news sources), that is asking the Pre-Trial Chamber of the ICC to issue warrants of arrest against Israeli Prime Minister Benjamin Netanyahu, et al., as well as against top Hamas leader Yahya Sinwar, et al., in Gaza for alleged war crimes and crimes against humanity.

INSTANTLY, ISRAEL DENOUNCED KHAN’S MOVE as a “historical disgrace,” and Hamas “strongly condemn(ed)” it. Netanyahu rejected “with disgust The Hague prosecutor’s comparison between democratic Israel and the mass murderers of Hamas.”

Joining the verbal fray, United States President Joe Biden denounced Khan’s bid as “outrageous … there is no equivalence—none—between Israel and Hamas.” The German foreign ministry (and other US allies) agreed, saying that the applications for warrants gave a “false impression of equivalence.”

But Khan was insistent that Israel committed “crimes against humanity” through its “widespread and systematic attack against the Palestinian civilian population” during the ongoing Israel-Hamas war in Gaza. He accused Sinwar and his cohorts of “criminal responsibility” for the unprovoked Oct. 7, 2023 Hamas blitz on civilians in Israel that included “the taking of hostages … rape and other acts of sexual violence [and] torture.”

TO UNDERSTAND THE POLITICAL HARANGUES, a brief background is appropriate. On July 17, 1998, the ICC was created by the Rome Statute (RS). It now has 124 member-states, but the US, Russia, China, Israel, and other powers are not members. It has four principal organs: the Presidency, the Judicial Divisions (composed of the Pre-Trial, Trial, and Appeals Chambers), the Office of the Prosecutor (OP), and the Registry.

After conducting its preliminary investigation, the OP (headed by Khan) applied in the Pre-Trial Chamber for arrest warrants and for authority to file appropriate charges in the Trial Chamber. Under the RS, an individual (like Netanyahu and Sinwar) may be held liable only (1) for crimes listed in the RS (2) committed in the territory of a member-state, or anywhere by a national of a member-state (3) when such state is or was a member, (4) provided there is no “complementarity,” that is, the ICC will act only if the state is “unwilling or unable to prosecute.”

The crimes were allegedly committed in Israel by Sinwar, et al., and in Gaza by Netanyahu, et al.; in short, by nonmembers of the ICC. Thus, like citizens of the US, Russia, China, and other nonmembers, they do not fall under the jurisdiction of the ICC. However, before applying for arrest warrants, Khan convened a “Panel of Experts in International Law” in January 2024. In its nine-page “Report” dated May 20, 2024, the six-member panel concluded that the ICC “has jurisdiction over the crimes set out in the applications for arrest warrants …” It opined that “Palestine, including Gaza, is a State for the purpose of the ICC Statute …” However, it made no mention of Israel’s non-membership in the ICC.

Moreover, the Report omitted the requirement for complementarity. Gaza, where the crimes attributed to the Israeli suspects happened, may not have the willingness or ability to prosecute the alleged crimes. But Israel, despite its verbal harangue, may be “willing and able to prosecute.” It has functioning prosecutorial offices, and its judiciary is active, competent, and independent.

I MET ISRAEL’S FIRST WOMAN CHIEF JUSTICE DORIT BEINISCH when we invited her here in 2001 (she was not yet CJ) as one of the legal experts during our Supreme Court’s Centenary Celebrations. Amid the ongoing disruptions and violence in her country at the time, she spoke fervently and convincingly on “Protecting Civil Liberties in a State of Continuing Emergency.”

After returning home, she sent me a long letter (quoted on pages 178-179 of my book “Reforming the Judiciary”). She wrote, “Thank you for sending me your book, ‘A Centenary of Justice.’ I already reserved a special place in my library for your books, and I am waiting for the next one … I was impressed by the work of your Supreme Court, which has managed to hold honorable and orderly procedures in the face of a difficult reality.”

She invited me to visit the Israeli Supreme Court in May 2000. I observed that despite the daily massive demos and stoning in many streets and plazas that the police tried to disperse with tear gas and rubber bullets, the Israeli judiciary still functioned actively, competently, and independently. Since then, I have kept track of important events there, and I think its judiciary has remained active, competent, and independent to this day.

I must admit, however, that I do not know much about Hamas and cannot comment on the Report’s allusion to it as a “part of the Palestinian state.” I read, however, that the United States and other countries have declared it a “terrorist organization” and its members “terrorists” to be “pursued and eliminated anywhere.” Hence, to these countries, any action by the ICC may be irrelevant because they can deal with Hamas more effectively than the ICC.

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