The stunning announcement that the International Criminal Court is considering issuing an arrest warrant for Israeli Prime Minister Benjamin Netanyahu for war crimes and crimes against humanity has ignited a fierce debate about the court’s future as an independent arbiter.
The request by Prosecutor Karim Khan against the leader of a close U.S. ally also comes as the United Nations’ highest court, the International Court of Justice, is investigating whether Israel has committed genocide during its seven-month war against Hamas in Gaza.
Although human rights activists generally welcomed Khan’s move on Monday, which also included requests to arrest Israel’s defense minister and three Hamas leaders, Netanyahu told ABC News that Khan’s decision turned the ICC into a “pariah institution.”
In Washington, where Senate Republicans have threatened sanctions against ICC staff, Secretary of State Antony Blinken said the Hague-based court doesn’t have jurisdiction and that it was “extremely wrongheaded” for the prosecutor to equate the Israeli officials with the Hamas leaders he’s seeking to indict.
Blinken said Tuesday that the Biden administration would work with Congress to come up with an appropriate response.
Khan has warned that attempts to interfere with the ICC’s work would be an offense under its founding treaty, the Rome Statute. However, the warning may not carry much weight, as world powers including the U.S., Israel, China and Russia, aren’t members of the court and don’t recognize its jurisdiction
European countries generally support the court, with France and Belgium underscoring their backing after Monday’s announcement.
“France supports the International Criminal Court, its independence, and the fight against impunity in all situations,” the country’s foreign ministry said in a statement late Monday, around the same time Belgium’s foreign minister expressed support for the tribunal.
Some Palestinians were critical of a perceived lack of reach in Khan’s requests.
In an opinion piece on the Global Issues website, analyst Mouin Rabbani wrote that Khan had ignored any and all “issues unconnected with the current situation in the Gaza Strip.”
Nour Odeh, a Palestinian political analyst in Ramallah, said she wasn’t surprised that Khan also sought charges against Hamas leaders, but noted in a text that he “had more charges against Hamas leaders than Israel which is a politicized choice that I find very cynical on his part.”
The ICC prosecutor’s office has been investigating alleged crimes in the Palestinian territories dating back to 2014 and could seek more arrest warrants in the future.
Nevertheless, Khan’s announcement Monday marked the first time in its more than two-decade existence that the global court’s prosecutor has sought to charge the leader of an important U.S. ally.
Israeli leaders fiercely deny they have committed crimes, saying they are defending their nation and abiding by international law. Because Israel doesn’t recognize the ICC’s jurisdiction, even if judges were to issue warrants, there is no immediate prospect of Netanyahu and Defense Minister Yoav Gallant being arrested anytime soon.
A decision on whether to issue warrants is expected to take several weeks. The legal bar for approving warrants is relatively low. Judges need to find “reasonable grounds to believe” that crimes outlined in Khan’s request were committed. In the past, judges have generally approved such requests.
“This is a watershed event in the history of international justice,” human rights lawyer Reed Brody, who has gone after leaders including Augusto Pinochet of Chile and former Chad strongman Hissène Habré, wrote in an email. “The ICC has never, in over 21 years of existence, indicted a western official. Indeed, no international tribunal since Nuremberg has done so.”
And it might have an impact.
“The Court as an institution is overwhelmingly supported by Western governments. But that might not always be true in the future,” Tom Ginsburg, a professor of international law at the University of Chicago Law School, told The Associated Press in an email. “By charging the head of a Western-supported government along with a terrorist leader, the Court is making an appeal to even-handedness.”
Also unusual — and indicative of the profound sensitivity of the request to charge Israeli and Hamas leaders — was Khan’s decision to consult a panel of top legal experts, including lawyer Amal Clooney, before seeking warrants.
“Clearly the prosecutor wanted some cover from prominent international lawyers for a highly charged decision,” said Ginsburg.
“By including Amal Clooney, he will ensure a lot of attention; by including Theodore Meron, a former legal advisor to the Foreign Ministry in Israel and prominent former judge of international criminal tribunals, he seeks to insulate himself from the charge of bias,” he added.
The latest Gaza war between began on Oct. 7, when Hamas-led militants crossed into Israel and killed some 1,200 people, mostly civilians, and took 250 hostage. Khan is seeking warrants for Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh on charges including the crimes against humanity of extermination, murder and sexual violence.
Among the charges Khan wants instated against Netanyahu and Gallant is the war crime of “starvation as a weapon of warfare.” That’s a first, too, in international courts.
“This is a watershed moment in addressing this egregious crime, which has long been viewed solely as a collateral or incidental effect of armed conflict, rather than a deliberate and calculated strategy,” said Catriona Murdoch, of rights group Global Rights Compliance.
For Palestinians who have long sought action from the ICC, Khan’s announcement was a breakthrough, even if they may not think he went far enough.
“Listening to Karim Khan talking about these crimes, these accusations, war crimes and crimes against humanity, knowing that this taboo has finally been broken, on an emotional level ... it is historic. It’s monumental,” said Odeh.
