Will proposed ICC arrest warrants for Gaza war figures deliver justice for Palestinians?

LONDON: By seeking arrest warrants for senior Israeli ministers and Hamas commanders, International Criminal Court prosecutor Karim Khan has thrust the court itself into the spotlight, raising questions about the prospects of success and the timing of the move.

Israeli Prime Minister Benjamin Netanyahu described Khan’s decision to issue arrest warrants against him, Defense Minister Yoav Gallant and several Hamas commanders for war crimes as “completely absurd” and “a judicial farce.”


A protester displays a sign with a portrait of Israeli Prime Minister Benjamin Netanyahu transformed into Nazi Germany’s leader Adolf Hitler during a demonstration called by the French organization France Palestine Solidarite in Paris on May 27, 2024. (AFP)

Gallant, for his part, described the planned arrest warrants against him and his prime minister as “disgraceful” and claimed that the background to them was the desire to reverse the founding of the State of Israel.

Given the slim likelihood that an International Criminal Court arrest warrant will be executed in this case – a move that Hassan Imran, a senior legal adviser at human rights group Law for Palestine, told Arab News would set “a precedent” – the question arises: What motivates Khan?


Exterior view of the International Criminal Court in The Hague, Netherlands, on April 30, 2024. (AP/File)

Julie Norman, a senior fellow at the Royal United Services Institute in London, believes the proposed arrest warrants could be aimed at coercing the warring parties into an agreement.

“Supporters of this move hope that the indictment will lead to an end to the conflict on both sides, that Hamas will release the hostages and that Israel will improve access to humanitarian aid in the Gaza Strip,” Norman said.

Although some said the ICC’s actions would make ceasefire negotiations more difficult, Mark Kersten, assistant professor of criminal law and criminology at Canada’s University of the Fraser Valley, told a Middle East news channel that “more difficult” does not necessarily mean “worse” negotiations.

FASTFACTS

• The International Criminal Court is an intergovernmental organization based in The Hague, Netherlands.

• The ICC is different from the International Court of Justice, a UN body that hears disputes between states.

• The ICC was established in 2002 as a follow-up to the multilateral Rome Statute.

“Take Colombia, where the International Criminal Court conducted a preliminary investigation for a decade,” he said. “The accountability processes negotiated there during the peace process led to real justice for many of the war atrocities committed by the government and the rebels.”

“Moreover, for the ICC to undermine negotiations, there must be a realistic prospect of a peace process. If there are no such negotiations, the claim that pursuing accountability would ruin them is likely a diversionary tactic – an argument designed to protect perpetrators of atrocities.”


Palestinians gather at the site of an Israeli attack on a camp for internally displaced people in Rafah on May 27. (AFP)

Khan’s application has been referred to the Pre-Trial Chamber of the International Criminal Court, where the three sitting judges – Iulia Motoc of Romania, Reine Alapini-Gansou of Benin and Nicolas Guillou of France – must now decide whether or not to take action.

After a seven-month fact-finding process, lawyers are convinced that Khan’s case is strong: Netanyahu and Gallant are accused of using starvation as a weapon of war, intentionally causing suffering, intentionally killing, deliberately targeting civilians, and committing extermination and persecution.

Sergey Vasiliev, associate professor of law at the University of Amsterdam, told Turkey’s Anadolu news agency that ICC judges must now decide whether there were sufficient grounds for the defendants to have committed the crimes and whether an arrest – and not just a summons – was necessary.

“I expect the judges to grant the request. I assume that the investigation has been thorough over the past seven months, that the evidence is sufficient to meet the requirements and that it is a concise yet convincing legal presentation,” Vasiliev said.


Judges of the Committee of the International Criminal Court are gathered at the ICC headquarters in The Hague, Netherlands. (ICC archive photo)

Explaining his position, Vasilyev said that the “sufficient grounds” requirement was not as demanding as the more stringent “substantial grounds for believing” requirement, adding that arrest warrant applications “are generally not expected to include a detailed analysis of the evidence.”

As for the timing, some commentators expect the judges to make their decision in the near future.

“I think it is a matter of days before we know whether the arrest warrants will be issued. Then all 124 states that are members of the court will be obliged to respond,” Gershon Baskin, Middle East director of the International Communities Organization, told Arab News.


Children enjoy the luxury of riding on a vehicle as many other Palestinians flee Rafah on foot with their belongings on May 28, 2024, as an Israeli military operation will take place there on May 28, 2024. (REUTERS)

Since the ICC does not make arrests or try people in absentia, the question of enforcement arises. There is little evidence that Israel is extraditing its own people. Gallant stressed: “It is not a party and does not recognize its authority.”

Nor do Gallant and Netanyahu have to fear that the US will extradite them to the International Criminal Court. Khan’s move has led to a rare moment of unity on both sides of party lines, with Republican Senator Lindsey Graham pushing for a rebuke of the International Criminal Court.

Graham received a positive response from Secretary of State Antony Blinken after asking, “I want to follow up with actions, not just words. Will you support a bipartisan effort to sanction the ICC – not just because of the outrage at Israel, but to protect our own interests in the future?”


U.S. Senator Lindsey Graham (R-SC) delivers a press statement during his visit to Tel Aviv, Israel, May 29, 2024. (REUTERS)

Surprising some, particularly given Germany’s vocal support for Israel and after joining other European states in calling the ICC’s move “deeply unhelpful,” Chancellor Olaf Scholz confirmed that Germany would not oppose an ICC arrest warrant if one were issued.

On Monday, Israel’s Attorney General Gali Baharav-Miara said that the Israeli judiciary was currently investigating allegations of possible criminal misconduct during the Gaza war and that Khan’s request for arrest warrants was therefore hasty and inappropriate.

“The states that set up the court saw it as a tool to deal with situations where there is ‘no law and no judge.’ That is not our situation,” Baharav-Miara said at a conference of the Israel Bar Association.

This section contains relevant reference points, placed in the (opinion field)

“It would have been more correct if the prosecutor had waited to make his decision until the internal state proceedings had been completed. It would have been right to give the State of Israel a fair chance in this regard.”

Julia Roknifard, assistant professor in the School of Politics, History and International Relations at the University of Nottingham, says the ICC is unlikely to bring a case to court because it has no jurisdiction over Israel itself.

“Netanyahu liked to travel to the US, but I don’t think he is welcome there now, and I don’t think he is in the mood to travel at all right now. So I think it is very unlikely that there will be an arrest if an arrest warrant is issued,” Roknifard told Arab News.

Baskin echoed Roknifard, saying it was highly unlikely that Gallant and Netanyahu would travel to a country where they would fear being arrested and extradited to the International Criminal Court, adding that arrest warrants were “kind of moot.”

Roknifard does not believe Khan is requesting arrest warrants for purely symbolic reasons. “I would not read more into the ICC’s request than it is intended to be – namely to indict individuals for the crimes they (allegedly) committed,” she said.


Prosecutor of the International Criminal Court Karim Khan. (AFP)

Instead, like Imran, Roknifard stresses the importance of the case that South Africa has brought before the International Court of Justice, which last week ordered Israel to halt its offensive in Rafah – an order that Israel has ignored.

Regarding Khan’s proposed arrest warrants, Imran said he believed it was less about a specific case than about the future of the ICC, or lack thereof.

“I think European states now have to make a choice between the institutions they have supported financially and their demands for a rules-based order guided by international law, as well as their support for Israel,” Imran told Arab News.

“We saw many of them criticising the court following Khan’s announcement, and now we hear some saying they will respect the decision. However, it is difficult to say what they would do if Netanyahu actually travelled to their territory with an arrest warrant out for him.

“Some will try to beat around the bush. But if they don’t implement the decision, they would essentially be disengaging from this international institution and essentially dissolving the ICC. And if they do that, it means they have to change their political objectives.”

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