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Kevin ClarkeMay 24, 2024
This combination of photos shows Yahya Sinwar, head of Hamas in Gaza, in Gaza City, Wednesday, April 13, 2022, left, and Israeli Prime Minister Benjamin Netanyahu in Tel Aviv, Israel on Oct. 28, 2023. (AP Photo)This combination of photos shows Yahya Sinwar, head of Hamas in Gaza, in Gaza City, Wednesday, April 13, 2022, left, and Israeli Prime Minister Benjamin Netanyahu in Tel Aviv, Israel on Oct. 28, 2023. (AP Photo)

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It is worth remembering that no one has been indicted yet, but the global diplomatic and political community experienced a shock on May 20 when the lead prosecutor for the International Criminal Court at the Hague reported that the court was pursuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. I.C.C. prosecutors bookended those requests with petitions for the arrests of senior Hamas leaders, Yehya Sinwar, Mohammed Deif and Ismail Haniyeh.

The court’s prosecutor, Karim Khan, accused the Israeli and Hamas leaders of war crimes and crimes against humanity in the Gaza Strip and Israel. While Mr. Netanyahu and Mr. Gallant do not face imminent arrest, the announcement has been perceived as a symbolic blow that deepens Israel’s international isolation because of its conduct of the war in Gaza. The possible indictments of the two Israelis represent the first time the court has considered charges against the leaders of a Western-allied state for war crimes and crimes against humanity.

Mr. Netanyahu quickly condemned the decision. “I reject with disgust the Hague prosecutor’s comparison between democratic Israel and the mass murderers of Hamas,” he said, calling it “a complete distortion of reality” and an attack on the Israeli military and all of Israel. He vowed to press ahead with Israel’s war against Hamas.

President Joe Biden issued a brief but direct statement, criticizing the I.C.C. prosecutor. “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” he said. “And let me be clear: whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas. We will always stand with Israel against threats to its security.”

Hamas officials also denounced the I.C.C. prosecutor’s actions, saying the request to arrest its leaders “equates the victim with the executioner.”

A panel of three judges will decide whether to issue the warrants and allow the cases to proceed against the men named by Mr. Khan. That ruling is typically handed down two months after the I.C.C. prosecutor’s warrant request.

The two Israeli leaders have already declined to recognize I.C.C. jurisdiction, but their ability to travel will be seriously hampered if I.C.C. warrants are issued. More than 120 nations have signed and ratified the Rome Statute that created the court in 1998 (it first met in 2002) and are bound to honor I.C.C. arrest warrants. Mr. Netanyahu has been pressing allied states to announce that they would not execute I.C.C. warrants, but a number of officials in European states have already acknowledged their intention to respond to the court’s orders if necessary.

The Hamas leaders are being considered for arrest warrants as masterminds of what appear to be clear violations of the humanitarian law of armed conflict in the day-long massacre orchestrated by Hamas on Oct. 7 in border communities in southern Israel, including acts of murder, torture and kidnapping. Noncombatants were gunned down, kidnapped and abused. Israeli officials have described multiple accounts of sexual assault. Hundreds of Israeli soldiers and noncombatants were kidnapped and taken as hostages, including the elderly and children, among them a then-10-month-old infant. Corpses were even taken as bargaining chips.

The possible indictments of the Israelis, if they are secured, are focused on the conduct of the war against Hamas in Gaza that followed the massacre on Oct. 7, specifically alleging the intentional extermination of civilians and the use of starvation as an act of war. The charges that the I.C.C. seems poised to file include “willfully causing great suffering.”

In the more than seven-month campaign against Hamas, which has included ground incursions and almost constant tank and artillery fire and air and marine strikes on the densely populated Gaza Strip, Israel Defense Forces have produced a high death toll among noncombatant men, women and children. Civilian infrastructure has been obliterated, and high explosives have been dropped on civilian housing sites; the I.D.F. argues that it is seeking to destroy Hamas tunnels and operational control sites underground. According to the Gaza Health Ministry, more than 35,000 people have been killed under the onslaught.

The application for arrest warrants from the I.C.C. comes as the United Nations’ highest court, the International Court of Justice, continues a separate investigation, based on an application filed by the South African government, of possible acts of genocide by Israel during its campaign in Gaza. The I.C.J. is empowered to investigate and resolve disputes between states while the I.C.C. is focused on pursuing investigations and prosecutions of individuals. The I.C.J. on May 24 ordered a halt to the I.D.F.’s continuing operation against Hamas in Rafah.

International criminal judicial bodies have been convened in the past to deal with extraordinary crimes against humanity. The International Military Tribunal at Nuremberg in the aftermath of World War II is perhaps the best known.

But the I.C.C. represents the first permanent judicial body established to investigate and prosecute individuals accused of genocide, war crimes and crimes against humanity. Support for the idea of an independent, permanent international court to investigate such crimes grew steadily in the late 20th century, particularly after the genocide in Rwanda in 1994 and the series of armed conflicts between 1991 and 2001 that followed the unraveling of the former Yugoslavia.

The announcement of the potential indictment of Mr. Netenyahu, the elected head of a Western-style democracy, stunned leaders around the world—perhaps because the I.C.C. rarely ventures off the African continent in its pursuit of alleged perpetrators of war crimes and crimes against humanity. It has been a longstanding criticism of the court that it has not challenged the potentially criminal use of force by powerful leaders outside of Africa. Just about all of its indictments, prosecutions and fugitive pursuits are of political and military actors from a handful of African states, most prominently Sudan, Libya, Kenya and the Democratic Republic of Congo.

The United States signed on to the Rome Statute during the Clinton administration, waiting until the last moment to do so on Dec. 31, 2000. U.S. negotiators had struggled to push through changes that would discourage “politicized” prosecutions and add protections U.S. citizens enjoy under the U.S. Constitution. But U.S. military leaders have never been happy about the idea of U.S. troops—or their superiors—being pulled in by an independent, international court to answer for possible war crimes. In 2002, the Bush administration formally withdrew the U.S. signature to the I.C.C.’s founding accord, and the ratification of the Rome Statute has never been brought for consideration before the U.S. Congress.

That means the United States, along with Israel, the Russian Federation, China and dozens of other nations—many with poor records on human rights—do not recognize the jurisdiction of the I.C.C. Any American politician or service member hypothetically indicted by the I.C.C. would not be subject to arrest on U.S. soil, but they could be arrested if they traveled to a state that has ratified the Rome Statute.

The I.C.C. petitions for warrants for Mr. Netanyau and Mr. Gallant have unleashed a storm of criticism in the United States. House Speaker Mike Johnson, Republican of Louisiana, is attempting to pull together bipartisan support for a bill that would sanction I.C.C. officials who investigate U.S. citizens or allies.

But U.S. officials have recently supported the court in high-profile cases like the pursuit of Sudan’s runaway strongman, Omar al-Bashir, and rediscovered an enthusiasm for multilateral criminal enforcement efforts last year on St. Patrick’s Day, when the court issued arrest warrants for President Vladimir Putin of Russia and a number of Russia’s major military figures. The court accuses the Russians of a number of war crimes alleged to have occurred during the Russian war of aggression against Ukraine that began in February 2022.

The Biden administration’s support of the I.C.C. in those instances puts it in a bind now. Israel is urging European states to refuse to follow the court’s orders, but officials in France, Germany and Belgium have already gone on the record in support of the court’s independence.

As Mr. Johnson presses on this week with sanctioning legislation in Washington, some members of Congress insist that the United States likewise support the independence of the court.

Senator Bernie Sanders, a Democrat of Vermont who has been consistently critical of the Netanyahu government’s handling of the crisis, speaking in the Senate on May 21, said that the United States cannot apply international law “only when it’s convenient” to U.S. interests.

The I.C.C. charges against Mr. Netanyahu and Mr. Gallant “focus on the use of starvation of civilians as a method of war as well as intentional attacks against the civilian population,” Mr. Sanders said, which he described as “clearly” war crimes.

In the senator’s assessment, “the I.C.C. is not making some claim of equivalence [between Hamas leadership and leadership of a democracy], as some have charged, but is in fact holding both sides in this current war to the same standard.”

He added, “Yes, democratically elected officials can commit war crimes.”

With reporting from The Associated Press

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