The prosecutor of the International Criminal Court in The Hague, Karim Khan, announced today that he would file applications for arrest warrants against Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant, and also against Yahya Sinwar and senior Hamas figures Mohammed Deif and Ismail Haniyeh. Who will decide on the applications, what can be done now, and what are the implications of the decision?
Who decides, and what are the chances that the applications will be accepted?
The decision on the applications for arrest warrants lies with a panel of three pre-trial judges from Benin, Mexico, and Romania.
Khan is very highly respected in the international legal community, and is considered professional, serious, and fair. He made his decision together with two advisers with high reputations whom he co-opted to his team in the past few months: US lawyer Brenda Hollis, and Andrew Cayley, formerly the chief military prosecutor in the UK.
In the light of the support of reputable experts for the application and of the fact that most applications are accepted, the assessment in Israel is that the court will in fact accept this application. Adv. Raz Nizri, a former deputy attorney general and now a senior partner at law firm Firon, told "Globes": "Unfortunately, given the way that the court works and its inbuilt bias, it can be assumed that unless there are unusual surprises and international diplomatic intervention, in the end the prosecutor’s application will be approved."
What grounds did the prosecutor give for the application for warrants against the prime minister and the minister of defense?
The prosecutor claims that there is evidence that the prime minister and the minister of defense committed the crimes of intentionally directing attacks against a civilian population, starvation of civilians as a method of warfare, extermination and/or murder, including in the context of deaths caused by starvation, and willfully causing great suffering, or serious injury to body or health, all of which are crimes under the Rome Statute that established the International Criminal Court.
The prosecutor states that "Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law." Khan mentions in his decision that he had warned that international humanitarian law obliges Israel to allow humanitarian aid into the Gaza Strip "at scale." "I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences. I could not have been clearer," he writes.
Khan charges the Hamas leaders with extermination, murder, taking hostages as a war crime, rape and other acts of sexual violence, torture, and other crimes against humanity.
Khan mentions the impression made upon him by a visit to Israel that included the settlements in the Gaza Strip border area that were attacked. "I saw the devastating scenes of these attacks and the profound impact of the unconscionable crimes charged in the applications filed today. Speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness. These acts demand accountability," he writes. He states that he relies on eyewitness accounts from survivors of the October 7 attack and released hostages, as well as other evidence.
"The equivalence implied in the decision between a democratic country acting in accordance with the rules of international law, where complaints can be independently investigated, and a terrorist organization that by definition breaches every international norm, is outrageous and sad, and indicates inbuilt hypocrisy in the court," says Adv. Nizri. "It should also be remembered that Israel has never recognized the jurisdiction of the International Criminal Court, unlike the International Court of Justice in The Hague, which hears cases involving states not individuals, and where Israel is participating in a proceeding initiated by South Africa."
What is the significance of arrest warrants issued by the International Criminal Court?
The significance is that all 124 countries that are members of the court will have to comply with the warrants and arrest anyone who is the subject of a warrant who enters their territory. Assuming warrants are issued, the prime minister and the minister of defense will not be able to travel to those countries without risking arrest. The US is not among the court’s members, and nor is Israel, but the prosecutor found that he had jurisdiction over the Israeli-Palestinian dispute, and the Palestinian Authority has been recognized as a member of the court. It should be pointed out that even if arrest warrants are issued, this does not necessarily mean that there will be indictments.
The assessment in Israel is that the countries that are members of the court will not wish to breach a warrant, and will therefore prefer that the prime minister and the minister of defense should not visit them. They will not wish to breach their commitments to the court. Another fear is that these countries are liable to issue arrest warrants against lower ranking people in the army and the government as well.
What are the implications of arrest warrants?
Besides the practical consequence of not being able to enter the territory of countries that are members of the court, arrest warrants will mark Israel as an illegitimate country and they are liable to inflame the antisemitism that is already growing worldwide. The issue of arrest warrants could bring in train economic sanctions on Israel, among them an arms embargo, a move that we have already seen in recent months.
In the background, the International Court of Justice is due to decide whether to order a halt to the war in the Gaza Strip, and the decision to apply for arrest warrants could encourage it to do so. Arrest warrants will put Israel in a group of countries with dubious records such as Russia, Sudan, and Libya, and could lead to foreign leaders avoiding meeting Israeli leaders.
Dr. Roy Schondorf, formerly a deputy attorney general for international law and now partner at the Herzog Fox & Neeman law firm told "Globes": "This is a very severe development. It won’t necessarily end just with an application for arrest warrants. The situation could lead to measures by other countries against us. It’s not blow that can be shrugged off. It has broad significance for the attitude to the State of Israel and its international standing, and there could be diplomatic and military consequences."
How has the decision been received in Israel?
In Israel there is anger at the comparison between Netanyahu and Gallant, who are waging war against a terrorist organization in the wake of a cruel attack, and the leaders of Hamas who carried out the attack. National Unity Party leader Benny Gantz attacked the decision. "The State of Israel embarked on a most just war after the slaughter of its citizens carried out by a terrorist organization. The State of Israel fights in the most moral way in history, in strict observance of international law. And the State of Israel has a strong, independent legal system. Presenting the leaders of a country that went to war to defend its citizens on a par with bloodthirsty terrorists is moral blindness and a blow to the country’s duty and ability to protect its citizen. Acceptance of the prosecutor’s stance will be a historic crime that will not be expunged."
Minister of Foreign Affairs Israel Katz called the decision "scandalous" and "a unbridled, frontal attack on the victims of October 7 and our 128 hostages in the Gaza Strip." Katz said he had set up a "war room" to fight a decision that would deny Israel the right of self defense, and that he would speak to the foreign ministers of leading countries asking them to come out against the decision and to announce that, if arrest warrants are issued against Israeli leaders, they will not enforce them.
The committee of the families of the Israeli hostages held in the Gaza Strip also condemned the ICC prosecutor’s decision. "The families committee rejects the symmetry between the leadership of Israel and the murderers of Hamas, and believes that the way to prove this again to the whole world is to enter immediately into negotiations for the release of the hostages, the living for rehabilitation and the dead for burial."
The committee welcomed the application for warrants against the Hamas leaders: "This represents further recognition of the crimes against humanity that they committed, and are still committing, against Israeli citizens, among them 128 hostages who are still held in Hamas’s cellars and are suffering from daily mistreatment," it stated.
Published by Globes, Israel business news - en.globes.co.il - on May 20, 2024.
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