Israel/Palestine: the moment of truth

On 20 May, the prosecutor of the International Criminal Court asked the judges to issue arrest warrants for crimes against humanity and war crimes against the Israeli Prime Minister and Defence Minister alongside three major leaders of Palestinian Hamas. Habib Nassar, Director of Policy and Research at the NGO Impunity Watch and a specialist in transitional justice issues in the Middle East, offers an on-the-spot analysis of Karim Khan's spectacular announcement.

ICC arrest warrants against Israel and Hamas. Photo montage of 3 flags: Hamas, the International Criminal Court (ICC) and Israel.
The International Criminal Court has now openly taken its place in the conflict between Israel and Hamas. Photo montage: Justice Info.
10 min 30Approximate reading time

According to the statement issued by the Prosecutor of the International Criminal Court (ICC) on 20 May, Israeli Prime Minister Benjamin Netanyahu and his Defence Minister Yoav Gallant committed crimes against humanity for extermination, murder, persecution and other inhumane acts, and war crimes for murder, causing bodily and mental harm, cruel treatment, intentional attacks against civilians and deliberately starving civilians as a method of warfare. “My Office submits that the evidence we have collected (…) shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival. (…) 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 or health of the civilian population – are criminal,” wrote Karim Khan.

For their part, three senior leaders of the Palestinian Hamas organisation – Ismaïl Haniyeh, head of the political bureau, Yahya Sinouar, head of the movement in Gaza, and Mohammed Deif, its military chief – are alleged to have committed crimes against humanity for extermination, crimes against humanity and war crimes of murder, rape, sexual violence and torture, as well as hostage-taking and cruel treatment, outrages upon personal dignity (war crimes) and other inhuman acts (crimes against humanity). Most of these crimes are linked to the context of the hostages' captivity. For the Prosecutor, “there are reasonable grounds to believe that Sinwar, Deif and Haniyeh are criminally responsible for the killing of hundreds of Israeli civilians during attacks perpetrated on 7 October 2023 by Hamas and other armed groups and for the abduction of at least 245 hostages. (...) It is the view of my Office that these individuals planned and instigated the commission of crimes on 7 October 2023, and have through their own actions, including personal visits to hostages shortly after their kidnapping, acknowledged their responsibility for those crimes. We submit that these crimes could not have been committed without their actions.”

The five people named are being prosecuted as direct perpetrators and as superiors.

JUSTICE INFO: In the history of international justice and of the International Criminal Court (ICC) in particular, what turning point does the announcement by Prosecutor Karim Khan represent?

HABIB NASSAR: It's quite a turning point because international justice in general, and the ICC in particular, has suffered since its birth from very strong criticism of "double standards", of its very selective approach to prosecutions. After the appointment of this prosecutor [Karim Khan has been ICC prosecutor since June 2021], things did not get off to a very promising start, with the abandonment of investigations in Afghanistan against international forces, in particular the United States and the United Kingdom. So today's announcement by the prosecutor is very good news, particularly in relation to these accusations.

How do you interpret this change in the prosecutor? Do you see it as a reversal of what he seemed to be showing or announcing at the time of his election?

I think there was an evolution rather than a reversal. It is something of a moment of truth for Karim Khan. You could say that he has responded quite strongly to the criticism that he was initially serving a Western agenda. When he took legal action against Putin – and I'm not criticising him – this was also interpreted as justice serving Western powers. Today, with this request for arrest warrants against Israeli leaders as well as Hamas leaders, it sends a very strong message to the whole world. The West is now facing its own moment of truth, because many of them, friends of Israel, are States Parties to the Rome Treaty [the 1998 treaty that founded the ICC] and they may have an obligation to arrest these people. It will be interesting to see how these states react in this particular case and to the ICC. Will we see a similar movement to the one we saw in Africa when there was this wave of anti-ICC sentiment that led a number of countries to announce that they were going to withdraw and denounce the Rome Treaty? The West, at least in rhetorical terms, is putting the fight against impunity at the centre of its foreign policy. How will they react?

And how will the states that claim to be friends of the Palestinian cause react? This is another moment of truth. Hamas is a very important Palestinian organisation. Will those states that denounce double standards also denounce them when it comes to Hamas?

I think we will also see criticism of the ICC for the threat that these arrest warrants, if confirmed, represent to the peace negotiations. I think that's the angle that will be used to criticise these warrants.

Do you think that the arrest warrant for Ismail Haniyeh, who represents the political wing of Hamas, is particularly open to this criticism?

Yes, and it will be interesting to see how the prosecutor has held Haniyeh responsible, as opposed to the Hamas military leaders. Is it on the basis of superior responsibility or is there other evidence? We don't have the elements to know it.

Was it a surprise to you that he was one of the people targeted?

Yes, it came as something of a surprise. Obviously, the prosecutor will deny any political calculation, but is this somehow his way of showing that he is prosecuting both the top Palestinian leaders of Hamas and top Israeli leaders? It may be a strategy, but in any case he will have to provide evidence of Haniyeh's responsibility.

Isn't the argument that these arrest warrants will seriously complicate the peace negotiations valid?

I think this is the argument that the United States in particular will use, but so will other Western states and perhaps even Arab states that are involved in the current negotiations. This could complicate matters but, by targeting individuals who have not so far shown a willingness to commit to a peace process, it may facilitate it. The exception would be Ismail Haniyeh because he is the political leader of the movement, not the military leader. But in principle these are not calculations that the prosecutor is supposed to make. It is clear that the United States is trying to sideline Netanyahu and that these arrest warrants will help the United States in its calculations.

Everything is weighed up in such politically sensitive announcements. The fact that there are three Hamas leaders and two Israelis, the fact that it is the three Hamas leaders who appear first in the prosecutor's statement, before the Israelis, will this be interpreted in one way or another in your opinion?

Yes, of course. I was surprised that Hamas leaders came first. But chronologically, if we take into account the crimes committed on 7 October, it was Hamas that committed the first crimes in this episode of the war - even if the Israeli-Palestinian war is not limited to the war that has been going on since 7 October.

There will always be all sorts of justifications. The same applies to the Prosecutor's use of this panel of experts, which is very interesting [a panel of experts has been put together by the ICC Prosecutor to assess the evidence and the nature of the crimes]. The Prosecutor has been very careful because he knows very well that he will face all sorts of criticism, denunciations and accusations. There's always a set-up. So a certain amount of staging has been put in place to prevent all kinds of criticism as far as possible. Clearly, in this conflict, the prosecutor could not have implicated one party without implicating the other. These are matters of strategy, even though he obviously did not invent violations to justify calling the parties into question. It is clear that there have been crimes on both sides.

This is the first time that the Prosecutor's Office of the ICC has simultaneously charged the top leaders of both parties to a conflict, isn't it?

Yes, I think so. Given the polarisation surrounding this conflict, I don't think he could have done otherwise. Of course, there will be criticisms that the scale of the violations committed by Israel is greater, but these criticisms are not acceptable because the violations committed on 7 October are international crimes. I think it was therefore a good thing to proceed in this way, because of the polarisation of opinions, both internally and internationally. My hope is that this will awaken public opinion to the fact that very serious violations were committed by both parties.

What exasperates me a little in this conflict is the inability of many people to denounce the crimes, whoever the perpetrators, and to want to take sides. I can't decontextualise: it's clear that there is a context of occupation and colonisation; it's very clear that one side is much stronger than the other. All that is very important, but when it comes to the victims, they are the same, whoever the perpetrators are. The lack of empathy towards some of the victims of the conflict is quite frightening in Western, Arab and other opinions. I think that these prosecutions will make everyone a little uncomfortable. It's a strong message and I hope it will make people think about how, with all the good intentions in the world, they show solidarity with [only] one side.

Habib Nassar
For Habib Nassar of Impunity Watch, the ICC prosecutor's announcement on the Israeli-Palestinian conflict is a turning point in the history of international justice.

In the case of Putin's indictment a year ago, the prosecutor waited until the judges had signed his arrest warrants before making them public. This is not the case here, as the judges have not yet validated them. Why do you think there is such a difference?

This is speculation, but did he want to send the message that he is impartial but that, in the end, he may not have as much evidence against everyone and that there is a risk that the judges will invalidate some of his requests?

And in this case, it would be up to the judges to take responsibility and not him?

Perhaps, yes. The prosecutor is a bit like the political arm of the ICC, he has a certain amount of discretion and room to manoeuvre. But the judges do not. He would obviously prefer it if it were the judges who, as a last resort, ruled out some of these arrest warrants or prosecutions. That may be the reason.

Is this also a way of putting pressure on judges?

No, I don't think so. But it may be a way of passing the buck. It will no longer be the prosecutor's responsibility: he will have brought charges, and no one will be able to accuse him of having been biased. From now on, all eyes will be on the judges, who generally don't get as much attention, especially in the pre-trial chamber.

I found it particularly interesting that the crime of deliberate starvation was retained. It's the first time that an international tribunal may deal with this crime. The siege [of Gaza] also goes with it, the humanitarian obstruction, the targeting of civilians, the cutting off of water and electricity. For both Hamas and Israeli representatives, the crime is extermination. This is a very, very strong term. This is not yet genocide, but it could be a prelude to an indictment for genocide, because the prosecutor has not finished his work.

A prelude or a way of avoiding it?

Yes, that could also be the case. It's difficult to say why he made that choice. He may well say that he has not gathered enough evidence to hold that genocide has been committed. But some of the violations for which he has issued arrest warrants may constitute the crime of genocide. So it is difficult to say whether he has done so to avoid the crime of genocide or whether he is in the process of preparing or continuing the investigation into this crime. Politically, if he had started with the crime of genocide, that would obviously have inflamed passions even more. So he may have made a strategic choice to start with other crimes.

I think he complied with the law. I don't think he was particularly daring. I think he's done his job and we'll see how he continues to do it, because it's not finished yet. If the arrest warrants are confirmed, we will have to see how they are implemented. Unfortunately, the conflict and the violations have not stopped. But in my opinion, on this issue, he has done his job.

However, there is another major aspect of the Palestinian situation, which dates from before 7 October 2023 and the Hamas attack, namely the colonisation of the Palestinian territories, particularly in the West Bank. Do you see a parallel between the ICC's inaction in Ukraine for eight years until it got hyper active after the full-scale Russian invasion of February 2022 and its inaction in Palestine for ten years, which looks suddenly erased by these spectacular arrest warrants?

We still have a lot of questions about the fact that nothing has been done about the settlements, which have been going on since 1967 and have worsened since 7 October, both by the Israeli army and by the settlers. This is very problematic and I don't quite understand the prosecutor's choice to ignore these things when, in terms of evidence, it would probably have been much simpler. Settlement is the main obstacle to peace between the Israelis and the Palestinians. Denouncing colonisation as a war crime and prosecuting those responsible could facilitate the peace process. The ICC has missed an opportunity here. Instead of being denounced all the time as an obstacle to peace, it could have demonstrated here that justice can serve peace, and it has not done so. It still has the opportunity to do so. This is a crime that has been going on for more than fifty years, and it has accelerated.

So do you fear that the prosecution strategy is guided more by media impact?

Unfortunately, yes, and it's problematic that the ICC is waiting for a widespread outbreak of conflict, and for there to be so much media attention, before intervening. When there are low-intensity conflicts and the ICC has the opportunity to investigate violations committed in this context, international justice can play a role and prevent the conflict from escalating. The ICC has taken far too long to investigate and prosecute. It could have done so much earlier.

Does this mean that there are still questions about the Prosecutor's strategy, which has taken just one year to issue spectacular indictments in Ukraine and seven months in Palestine, while other situations - Nigeria, Sudan, Venezuela, Georgia - have shown the same slowness and indecision? Is today's turnaround a real turnaround, or just a partial, even opportunistic one?

Look, when there's a positive development, we have to recognise it. It's not enough, but on the issue of double standards, what's happened today is an important turning point. It's a first step. I wouldn't say we're out of the woods. It remains to be seen how States that could facilitate the implementation of these arrest warrants will react.

It also seems unlikely that these Israeli leaders - and no doubt those of Hamas too - will one day appear before the judges in The Hague. The same applies to Putin. Does this reduce the ICC to a strictly symbolic function?

The ICC is one element in a much broader infrastructure for justice. Justice is not just about criminal justice. Today, the territory of Gaza is partially destroyed and a possible trial at the ICC is not going to do much to change that. This is where international justice shows its limitations. We also need to think about other measures of justice and reparation. We must listen to the Palestinian and Israeli victims. For the former, justice will only begin to be achieved the day they can enjoy the right to self-determination, in other words to have a viable Palestinian state. In the end, that is the real justice in this conflict.

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