After months of gathering evidence, Karim Khan, the chief prosecutor of the International Criminal Court (ICC), has sought arrest warrants for top Israeli and Hamas leaders on allegations of war crimes.
Khan announced that his office has “reasonable grounds” to believe that Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant bear’ criminal responsibility’ for ‘war crimes and crimes against humanity’ in the Gaza Strip since the beginning of Israel’s war on Gaza, in which it has killed more than 35.000 Palestinians.
He stated that his team has uncovered evidence showing that Israel has “intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.”
“This took place alongside other attacks on civilians, including those queuing for food, the obstruction of aid delivery by humanitarian agencies, and attacks on and killings of aid workers, which forced many agencies to cease or limit their operations in Gaza,” he explained.
Additionally, Khan noted that Israel’s siege of the Gaza Strip, characterised by closing border crossings and restricting the transfer of food, water, and medical supplies, was part of a deliberate Israeli strategy to use starvation as a “method of war.”
Next Steps and Potential Scenarios
In the coming months, a panel of judges in the ICC’s pre-trial chamber will evaluate Khan’s request for arrest warrants. The pre-trial chamber must determine “reasonable grounds” to believe the individuals in question have committed crimes within the ICC’s jurisdiction. It is important to emphasise that the Court was granted jurisdiction over all crimes in the occupied Palestinian territory in 2015.
Although there have been rare instances where the chamber has rejected similar requests, international legal experts expect an arrest warrant to be issued against Netanyahu and Gallant. If such a decision is made, any arrest warrants could have both real and symbolic consequences for the accused, including potential arrest if they travel to countries that recognise the ICC, as state parties to the Rome Statute are obligated to enforce the Court’s decisions.
Indeed, Norway and Israel’s historical ally Germany have stated they would comply with the Court’s arrest order if issued. Consequently, Netanyahu may need to adjust his travel plans based on the Court’s decision.
However, neither Israeli nor Hamas leaders would face trial unless they are in the Court’s custody, and the ICC does not have an enforcement arm with the authority to carry out arrests.
Despite Israel’s track record of disregarding international legal decisions, and regardless of how Tel Aviv responds if arrest warrants are issued Netanyahu and Gallant will likely face restricted international travel, especially considering some European countries’ unanticipated statements emphasising “the supremacy of international law” following Khan’s request.
Reactions from Tel Aviv
Israeli politicians, particularly Netanyahu, who is directly affected by the decision, have rejected the request.
“I reject with disgust the comparison made by the prosecutor in The Hague between democratic Israel and Hamas,” he said.
Israeli war cabinet member Benny Gantz, along with far-right ministers Bezalel Smotrich and Itamar Ben-Gvir, also criticised Khan, accusing him of “anti-Semitism”, a familiar defence mechanism for Israel.
Smotrich described the decision as a “display of hypocrisy and Jew hatred.” Benny Gantz stated that the move was a “crime of historic proportions.”
Similarly, opposition leader Yair Lapid labelled the decision a “disaster.”
American Hypocrisy Exposed
As expected, Khan’s request also caused deep unrest in the U.S. Although the relationship between the White House and the ICC has never been “stellar,” even during previous administrations, Washington generally took a more moderate stance towards the Court due to its role as an international judicial body, at least until Trump’s presidency. Enmity towards the Court peaked during Trump’s tenure, and there were expectations that this attitude might soften with Joe Biden’s inauguration.
However, despite Biden’s promises to reengage with international institutions following Trump’s isolationist policies, the U.S. continues to have a strained relationship with the ICC.
In that vein, from the time Khan initiated the investigation into Israeli officials to the recent request for arrest warrants, the tone of the U.S. responses towards the ICC has grown increasingly harsh.
Several Republican legislators had warned Khan in late April against seeking arrest warrants against Netanyahu or other Israeli officials after reports began to circulate that such a request was imminent.
“Such actions are illegitimate and lack legal basis, and if carried out will result in severe sanctions against you and your institution,” they wrote in a letter that was made public this month.
“Target Israel, and we will target you. If you move forward…we will move to end all American support for the ICC, sanction your employees and associates, and ban you and your families from the United States. You have been warned,” it concluded.
Following Khan’s current request for arrest warrants, the threats from Republican legislators continued.
Senator Tom Cotton said, “Khan’s announcement shows that the ICC—which is tasked with investigating war crimes, crimes against humanity, and other atrocities—is a farce. My colleagues and I look forward to making sure neither Khan, his associates, nor their families will ever set foot again in the United States,” he wrote on X.
Congressman Antony D’Esposito also said the ICC was “playing with fire,” writing on social media that “there will be serious consequences if they proceed.”
Brian Mast, another Republican in the House of Representatives, stated, “America does not recognise the ICC, but the Court sure as hell will recognise what happens when you target our allies.”
Acerbic criticism of the Court came from the Democrats as well. President Biden rejected the application as an attempt to compare the actions of Israel and Gaza by expressing: “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous.
A spokesperson for the U.S. Department of State, Matthew Miller, said Washington does not believe the ICC has jurisdiction over the situation in Gaza. “We have made clear that we do not believe the Court has jurisdiction in this case and oppose their investigation,” he said.
The responses from the American upper echelon ultimately demonstrate that the U.S., which often “lectures” other countries on judicial independence and the rule of law, is once again choosing to overlook Israel’s persistent violations of international law and intends to grant it “legal immunity.” In this regard, American political elites have undermined all principles of judicial independence by threatening an international court.
Will it Boost Efforts to Halt the Massacre?
Although international judicial institutions, unlike the United Nations, do not primarily aim to maintain global peace, Khan’s request and the potential arrest warrants issued by the Court represent significant steps toward punishing those responsible and preventing impunity, especially in light of the ineffectiveness of the United Nations and other international organisations in stopping the ongoing massacre and genocide in Gaza.
However, for these measures to achieve their intended goals and to halt civilian casualties, they must possess more than symbolic value; they must be enforceable. This enforceability relies on respect for these decisions and compliance with their requirements.
Expecting such adherence from Israel, which considers itself immune to international law, is unrealistic. Therefore, Tel Aviv should not be merely invited to comply with international law through rhetoric alone. If the comatose state of the “international order of values” over the past few decades is to be revived with one last hope before it perishes, this genocide must be viewed as an opportunity for a collective response. Moving beyond mere condemnations, international actors must take tangible steps against Tel Aviv, including various sanctions.
The international community must recognise that without concrete measures and unified pressure, the promise of international legal institutions will remain unfulfilled, and the global order will continue to falter in the face of such atrocities.
This article is originally appeared in opinion section of the Middle East Monitor.