ICC Warrants Both Historic and Cynical

Ali Abunimah 

The Electronic Intifada Rights and Accountability 

20 May 2024

The chief prosecutor of the International Criminal Court announced on Monday that he is seeking arrest warrants against two top Israeli leaders for crimes in the Gaza Strip.

Karim Khan said that he had “reasonable grounds to believe” that Israeli Prime Minister Benjamin Netanyahu and defense minister Yoav Gallant “bear criminal responsibility” for a number of international crimes committed since 8 October, including starvation as a weapon of war, murder, intentionally attacking civilians, extermination, persecution and other crimes against humanity.

The decision which has been too long in coming is as vexing as it is momentous.

While there will be relief that finally Israel’s shield of immunity and impunity is being punctured, Khan also charged several leaders of the Palestinian resistance movement Hamas with various crimes.

Khan claims that Hamas politburo leader Ismail Haniyeh, its Gaza leader Yahya Sinwar and the chief of its military wing Muhammad Deif are responsible for crimes including extermination, murder, hostage-taking, torture and rape.

The political nature of the charges against the Hamas leaders is clear from the fact that Khan has charged more Palestinians with crimes than Israelis.

A cynical view might be that Khan only charged the two Israeli leaders that Washington wants to see gone, while letting countless other Israeli political and military officials off the hook – at least for now.

Moreover, Khan included the charges of rape and sexual violence, giving credence to Israeli atrocity propaganda that has been thoroughly debunked, and for which Israel has presented no credible evidence.

It is notable that while Khan explicitly charged the Palestinian leaders with “torture,” that word does not appear in the charges against Netanyahu and Gallant, even though there are many credible reports of systematic torture against Palestinians on a horrifying scale, including in closed detention camps.

Most glaringly, Khan failed to lay any charges against Netanyahu and Gallant under Article 6 of the ICC’s founding Rome Statute – the section that deals with genocide.

He only charged them under chapters 7 and 8, which address crimes against humanity and war crimes – the same articles he used against the Hamas leaders.

Khan could also have filed charges related to Israeli crimes elsewhere in Palestine, for example Israel’s construction of illegal colonies all over the occupied West Bank – a crime that has been ongoing for decades.

By failing to do so, he is feeding the false impression that history began on 7 October 2023.

Resistance is always criminalized

While Khan can attempt to market all this as demonstrating equal justice, it is no such thing: It is an outrageous and false equivalence. He could not maintain a shred of credibility if he did nothing against Israeli leaders, so he did the minimum he thought he could get away with.

But this will also be of no surprise to anyone, least of all Hamas leaders, who would have expected to be charged as the price of obtaining some measure of international justice for their people.

In January, for instance, Mousa Abu Marzouk, a senior leader of Hamas, wrote, “Since 2015 Hamas has repeatedly expressed its interest in appearing before and being judged by the ICC not on the basis of unsubstantiated allegations and screams but evidence and facts. Israel has not.”

Abu Marzouk added: “Hamas stands ready to appear before the ICC with witnesses and live testimony and bear the burden of any judicial finding against it or its members after a full and fair trial with rules of evidence; with examination and cross examination into what we have done or not over the many years of our leadership as a national liberation movement. Is Israel?”

And as Columbia University Professor Joseph Massad points out, the West has always considered anti-colonial struggles to be criminal, while its own colonial barbarity is always described as “defensive.”

In this context, Khan’s blatantly political effort to downplay Israel’s crimes is par for the course.

Pariah

The arrest warrants – which have still to be formally issued by the court’s judges – will have no immediate impact on Sinwar or Deif, whose whereabouts as underground resistance leaders is unknown. Arrest by the ICC is the least of their concerns.

As for Hamas politburo chief Ismail Haniyeh, he lives in Qatar, which is one of only a handful of countries that is not a member of the ICC and is therefore not legally obligated to arrest him and hand him over.

Hamas is already outlawed and subject to sanctions by the United States and across Europe so it is not as if the movement’s leaders would have been moving freely anyway.

Nonetheless, if Khan’s soft-pedaling of Israel’s atrocities is aimed at placating Tel Aviv or its sponsors, it will definitely fail.

There is certain to be rage, uproar and more threats from Washington and Tel Aviv of the kind Khan recently pushed back on.

And although Khan has pulled his punches, the arrest warrants will have an enormous impact on Israel and its leaders, who now find themselves ostracized and constrained in unprecedented ways.

Netanyahu and Gallant will be unable to travel to dozens of countries, including most of Europe, without fear of arrest. European countries, in particular, which purport to uphold international law, will either have to detain them and hand them over to the court, or openly defy their legal obligations.

This includes Germany, which provides arms for Israel’s genocide while purporting to be a champion of international law.

The damage to Israel’s reputation and its descent into even greater pariah status is assured, despite Khan’s every effort to soften the blow.

The United States, Israel’s chief arms supplier and accomplice in the genocide, is also not a member of the ICC, and it will not cooperate with the arrest warrants.

But even for a government as heedless of international law as Washington, the leaders of its closest ally being charged by the ICC increases both the domestic and international political cost of supporting Israel unconditionally.

Recall that President Joe Biden welcomed it when Khan applied for an ICC arrest warrant against Russian President Vladimir Putin last year over Moscow’s military operation in Ukraine.

The process of going from today’s announcement by Khan to the judges actually issuing the arrest warrants could take as much as two months.

Perhaps the only important question is whether Monday’s announcement will deter Israel from continuing its extermination campaign in Gaza in the meantime.