After months gathering evidence, International Criminal Court (ICC) Chief Prosecutor Karim Khan has applied for arrest warrants against top Israeli and Hamas leaders.
Khan issued a statement on Monday explaining that he has “reasonable grounds” to believe that Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant are guilty of committing 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.
Both are accused of using starvation as a method of warfare against Palestinians in Gaza as well as “intentionally directing attacks” against civilians and overseeing the “extermination and/or murder” of Palestinians in Gaza.
Khan also accused senior Hamas leaders Yahya Sinwar, Mohamed Diab Ibrahim al-Masri (also known as Mohamed Deif) and Ismail Haniyeh of overseeing crimes against Israeli communities on October 7 when 1,139 people were killed and 250 taken captive in southern Israel.
They may be indicted for crimes that include “killing and extermination”, “taking hostages”, and overseeing torture and other inhumane acts.
The announcement that Khan is targeting Netanyahu and Gallant is perhaps most significant, considering it will be the first time an ICC chief prosecutor has tried to indict the leaders of a United States ally.
This is all you need to know about Khan’s announcement:
Will the ICC accept Khan’s request?
For the next few months, a panel of judges in the ICC’s pre-trial chamber will review Khan’s request for arrest warrants.
Alonso Gurmendi, an international law scholar at King’s College London, told Al Jazeera that requests have been denied in the past although it is uncommon. He expects the indictments for the Israeli and Hamas leaders will be approved.
Gurmendi explained that the pre-trial chamber needs to establish that there are “reasonable grounds” that the people in question have committed a crime within the ICC’s jurisdiction.
The ICC was granted jurisdiction over all crimes committed in the occupied Palestinian territory in 2015.
“[What’s happening in Gaza] is such a visible act of criminality. What is being described [by Khan] is what we’re seeing. … I just don’t see a mismatch between the conduct of the accused and the warrant itself,” Gurmendi told Al Jazeera.
He added that there is concern that Israel’s allies may try to pressure the judges to decline Khan’s arrest warrants for the Israeli leaders.
Balkees Jarrah, the associate director of the international justice programme for Human Rights Watch, shares a similar concern.
“ICC member countries should stand ready to resolutely protect the ICC’s independence as hostile pressure is likely to increase while the ICC judges consider Khan’s request,” she said in a statement sent to Al Jazeera.
How have Hamas and Israel responded?
Hamas’s leadership has called on Khan to cancel his arrest warrant requests against its leaders. In a statement, the group said the chief prosecutor was equating “the victim with the executioner.”
Israeli politicians, including Netanyahu, have also rejected the requests. “I reject with disgust the comparison of the prosecutor in The Hague between democratic Israel and the mass murderers of Hamas,” the prime minister said.
Israeli war cabinet member Benny Gantz and far-right ministers Bezalel Smotrich and Itamar Ben-Gvir also attacked Khan with Smotrich and Ben-Gvir accusing Khan of anti-Semitism. However, Gurmendi said that accusation rings hollow.
“One very important thing that the ICC has done is to submit these warrants against both Israel and Hamas leaders. That prevents the logical accusation that Khan or the ICC is anti-Semitic and is pro-Hamas. It patently breaks down that assumption,” he told Al Jazeera.
The US has backed Israel in rejecting the arrest warrant requests while South Africa, which is pursuing a genocide case against Israel at the International Court of Justice (ICJ) for its actions in Gaza, has backed Khan’s move.
What will be the consequences of Khan’s decision?
Any arrest warrants could have real and symbolic consequences for the accused, including possible arrest if they travel to countries that are members of the ICC. However, neither Hamas nor Israeli leaders will stand trial unless they are in the court’s custody, and the ICC does not have a force under its authority that has the power to arrest anyone.
Sinwar and Deif are in hiding in Gaza while Haniyeh is in Qatar, which is not a member of the ICC.
Israel has previously disregarded international legal decisions.
In 2004, an advisory opinion by the International Court of Justice, which is a United Nations institution, found that Israel’s separation wall is illegal. Two decades later, Israel has not complied with ICJ provisional measures issued in January, which ordered aid to civilians in Gaza be scaled up.
Irrespective of how Israel responds if arrest warrants are issued, Gallant and Netanyahu won’t be able to travel as widely outside Israel.
As prime minister, Netanyahu may not face the threat of arrest if he travels to the US, which is not a party to the Rome Statute, the treaty that established the ICC.
Some observers fear that ICC members that are allies of Israel, such as Germany and the United Kingdom, may also not arrest a visiting Netanyahu or Gallant, effectively violating their obligation under the Rome Statute.
“This is a make or break moment. It is the definitive trial by fire for the project of international criminal justice,” Gurmendi said. “To what level of hypocrisy are Western states willing to sink in order to enable what Israel is doing in Gaza?”
“The West really needs to choose. Is international criminal justice something it wants to champion or is it all about realpolitik?”
