Punishing the Guilty

The International Criminal Court’s (ICC) chief prosecutor Karim Ahmad Khan has filed a request before the court for the issue of arrest warrants against three principal leaders of Hamas—Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh-- as well as Israeli prime minister Benjamin Netanyahu and defence minister Yoav Gallant.

In an announcement on May 20 Khan claimed that there was sufficient evidence with his office against the five for committing war crimes and crimes against humanity. These crimes, according to him, warrant their trial before the ICC. It will now be up to the concerned ICC judges to scrutinize and decide on Khan’s request. Their decision will have a global diplomatic impact.

While examining Khan’s request the judges will have to decide whether, prima facie, the ICC has jurisdiction in the matter. In this context the issue whether the states of the ‘named’ nationals are signatories to the ICC will arise. Israel had initial inhibitions but signed up for ICC membership in 2000. It did not, however, ratify its decision and in 2002 withdrew from the ICC.

Hence, it is not a state party to the ICC. Palestine is not a state in the strict sense of the term but in 1988 the Palestinian National Authority declared it to be a state. Some countries, including India, accepted it as a state though it still does not have the status of a sovereign status in the United Nations, including membership.

In the 1990s, following negotiations, Israel accepted that the Palestinians could have self-governance in the West Bank and Gaza. In January 2015 the Palestinian ‘government’ acceded to the ICC. In February 2021 the ICC held that its jurisdiction extended to the ‘territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem’. This is significant because it can provide the basis for the ICC judges to accept Khan’s request by holding that the court has jurisdiction over developments in Gaza.

In the May 20 statement Khan noted that the three Hamas leaders “bear criminal responsibility” for murder, hostage taking, rape and other acts of sexual violence, torture and extermination among others. Khan stated that these war crimes were committed “in the context of an international armed conflict between Israel and Palestine, and a non-international conflict between Israel and Hamas running in parallel”. Khan went on to allege that these crimes against humanity were part of a widespread and systematic attack” against Israeli civilians.

Khan also stated that his Office and he himself had visited some of the “crime” scenes and had spoken to victims. They also had documentary and other evidence of the crimes perpetrated by Hamas. He also reiterated his call for the immediate release of all the hostages; at least 245 Israelis were taken as hostage by Hamas—Khan said that there were reasonable grounds to make this assessment.

It is noteworthy that Khan’s statement broadly substantiates much of what Israel has claimed about the October 7 attack. It would have derived great satisfaction about Khan’s assessments had he not proceeded further to indict Netanyahu and Gallant. Khan concedes that “Israel, like all states, has the 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. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza—namely intentionally causing death, starvation, great suffering, and serious injury to body and health of the civilian population—are criminal”.

The war crimes which Khan has laid at Netanyahu and Gallant’s door are willfully killing, starving, exterminating and causing great suffering to the civilian population of Gaza. While Khan does not mention any number of Gazans killed since the Israel operation in Gaza began in response to the October 7 Hamas attack credible media reports put it at more than 35,000.

Israel’s friends, especially the United States, reacted with fury against Khan’s step. President Joe Biden called it outrageous. The fact is that Biden is caught in a bind. He cannot condemn Israel because of the power of the Israeli lobby in the United States nor can be condone the suffering of the Gaza population. The Arab and Muslim vote is not insignificant in some electorally critical parts. Besides, as the university campuses agitation showed many young Americans are upset with what they perceive is the disproportionate use of force by Israel against Gaza.

The same is the sentiment in some European countries. In a diplomatically significant move Ireland, Spain and Norway announced on May 22 that they would recognize Palestinian statehood. Their decision is doubtless a reaction to the Israel’s continuing military action in Gaza. No country—except those like Iran—who have traditionally supported Hamas and other anti-Israel groups such as the Hizbollah---has held that Israel should not act to defang Hamas so that an attack like that of October 7 does not occur again. At the same time no country has been able to defend the deaths of 35000 Gaza people and their enormous suffering over the past 7 months and more. Their sentiments have been well captured by Khan.

It is not unlikely that the ICC will issue warrants for the arrest of Netanyahu. Having issued such a warrant for Russian President Putin last year it can hardly not do the same for Netanyahu. That does not mean that the ICC can hope to get hold of an Israeli leader. What it will mean is a reputational loss for Israel and diplomatic difficulties for Netanyahu and Israel’s partners.