ICC warrants sought for Israel PM Netanyahu and Def. Minister Gallant and Hamas officials – National & International News – MON 20May2024

ICC warrants sought for Israel PM Netanyahu and Def. Minister Gallant and Hamas officials. How can Israel and the US save face? Could US officials be in trouble as well?

Iran President Raisi won’t be missed, but his death comes at a bad time.

ICC warrants sought against Israel PM Netanyahu, Defense Minister Gallant and 3 Hamas officials

Karim Khan, the lead prosecutor of the International Criminal Court, announced today that he seeking arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant as well as Hamas politburo chief Ismail Haniyeh, Gaza military leader Yahyah Sinwar and Mohammed Diab Ibrahim al-Masri (aka “Deif”), the commander of Al-Qassam Brigades, Hamas’ armed wing.

Khan accuses these men of war crimes and crimes against humanity committed since Oct. 7, 2023. He is pursuing these warrants on the premise that the evidence gathered by his office meets the “threshold of a realistic prospect of conviction”. During his address, Khan indicated that he may seek warrants against other individuals if he can gather evidence that meets this threshold.

While the International Court of Justice (where Israel is also facing charges of genocide) adjudicates treaty violations between states, the ICC prosecutes individuals for war crimes and crimes against humanity. This can include crimes committed by anyone from civilian leaders, to military commanders, down to ordinary soldiers. 

Unlike the ICJ, where all UN member-states are subject to its authority, states must join the ICC by ratifying the Rome Statute. Out of 190 UN members, 124 are signatories to the Rome Statute. Notably, the US and Israel are not signatories. However, the State of Palestine, a non-voting member of the UN, signed onto the Rome Statute in 2015. This gives the ICC jurisdiction over war crimes or crimes against humanity committed by any party in the Occupied Palestinian Territories (the West Bank, Gaza, and East Jerusalem).

What are the charges?

Netanyahu and Gallant are accused of the following crimes, which Khan alleges were committed “pursuant to a state policy” on or since Oct. 8:

• Starvation of civilians as a method of warfare.
• Willfully causing great suffering, or serious injury to body or health.
• Willful killing, or murder.
• Intentionally directing attacks against a civilian population as a war crime.
• Extermination and/or murder, including in the context of deaths caused by starvation, as a crime against humanity.
• Persecution as a crime against humanity.
• Other inhumane acts as crimes against humanity.

Haniyeh, Sinwar and al-Masri are accused of these crimes alleged to have been committed on or since Oct. 7.

• Extermination as a crime against humanity.
• Murder as a crime against humanity and as a war crime.
• Taking hostages as a war crime.
• Rape and other acts of sexual violence as crimes against humanity and as war crimes.
• Torture as a crime against humanity and as a war crime, in the context of captivity.
• Other inhumane acts as a crime against humanity.
• Cruel treatment as a war crime.
• Outrages upon personal dignity as a war crime.

What happens next?

The ICC has a panel of 18 judges, each representing a different country that is party to the Rome Statute. A pre-trial panel of three judges (from Romania, Benin and Mexico) will evaluate Khan’s evidence and decide whether or not to issue warrants, and which ones. This process could take weeks or months.

If any warrants are issued, any ICC member-country will be obligated to apprehend the subject of the warrants if they are on their soil. But apprehending any of the 5 men will be difficult. The country where Haniyeh lives (Qatar) is not a Rome signatory, nor are any of the countries he regularly travels to on official business (Egypt, Saudi Arabia, Russia, Turkey, and Iran). Sinwar and al-Masri cannot freely travel outside of Gaza, and Israel is unlikely to allow them to leave alive in any case.

Netanyahu and Gallant are safe as long as they either remain in Israel or restrict their travel to other non-signatory countries (like the US). However, it will certainly be awkward for Israel’s Prime Minister to be unable to freely travel to any EU-member state, nor to Canada, nor to most African and Latin American states.

Last chance for Israel

Predictably, both US and Israeli officials have reacted with outrage to Khan’s announcement. US officials insists that the court lacks jurisdiction to charge Israeli leaders because Israel is not a Rome Statute signatory. This puts the Biden administration in an embarrassing position, having previously supported ICC warrants against Russian President Vladimir Putin, despite Russia also not being a signatory.

Israel is facing the equally shameful prospect of seeing its legitimacy in the world vanish completely. However, Khan has subtly alluded to a potential off-ramp: Israel’s own judiciary could pursue charges against Netanyahu, Gallant, and any other Israeli war criminals.

Israel has an independent judiciary, which has often been at odds with the country’s elected leadership. However, since Oct. 7, their courts have fallen silent. Despite overwhelming evidence in the public domain, Israel’s judiciary has failed to prosecute crimes by Israeli soldiers, officials, and citizens, both in Gaza and the West Bank. Nor has the court prosecuted any Israeli political, military and media figures for public incitements to genocide, which itself is a violation of international law.

In an interview with CNN’s Christiane Amanpour (20:00), Khan highlighted years of failures by Israel’s courts to fairly administer law in the Occupied Palestinian Territories. Khan also told the Jerusalem Post: “Despite significant efforts, the Office has not received any information that has demonstrated genuine action at the domestic level [in Israel] to address the crimes alleged or the individuals under investigation”. This suggests that Khan’s office has urged Israel’s judiciary to take action, but so far, they have refused to do so.

The ICC is meant to be a court of last resort. To have one’s citizens brought before the Hague signals that that nation’s courts have no legitimacy, “a sham” in Khan’s words. By publicly announcing his application for warrants today (which is unusual), Khan may have given Israel’s judiciary a last chance to save face.

Are any US officials in trouble?

The short answer is, “Not yet”. President Biden has increasingly come under fire, both domestically and internationally for continuing to arm and fund Israel’s military despite growing evidence of egregious war crimes by Israel against the people of Gaza. However, given the ICC’s limited jurisdiction over the US, it’s unlikely any US officials would face prosecution on this basis. 

During his announcement, Khan referenced “attempts to impede, intimidate or to improperly influence” ICC officials” demanding that these attempts cease immediately. During his interview with Amanpour (19:00), Khan referenced threats “some of which are public and some maybe not”.

While Khan didn’t name the perpetrators, Biden officials have been working behind-the-scenes to discourage Khan’s office from pursuing charges against Israeli leaders. Additionally, 12 Republican Senators sent a letter to Khan last month, which read in part: 

“Target Israel and we will target you. If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.“

There’s also the possibility of the US invoking the American Service-Members’ Protection Act (2002), colloquially known as the “Hague Invasion Act”. 

Khan said during his announcement that his office was ready to pursue action under Article 70 if the pressure campaign does not cease. Article 70 of the Rome Statute (page 50) proclaims that the ICC has jurisdiction to pursue charges against anyone:

• (70)(1)(d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; or
• (70)(1)(e) Retaliating against an official of the Court on account of duties performed by that or another official.

Anyone found guilty of such offenses could face up to 5 years in prison, a fine, or both. That could potentially include citizens of nations that are not party to the Rome Statute, such as the United States.

Iran’s President, Foreign Minister dead after helicopter crash

Last night, a helicopter carrying Iran’s hardline President Ebrahim Raisi, Foreign Minister Hossein Amir-Abdollahian and 6 others went down in the mountains in Iran’s East Azerbaijan Province. The group was traveling back from Azerbaijan where they were inaugurating a new dam when their helicopter ran into heavy fog. Due to the poor weather and rugged terrain, it was over 12 hours before over 70 rescue teams from Iran were able to locate and reach the remote crash site. Raisi, Amir-Abdollahian and the others were all dead.

Given the recent tensions between Israel and Iran, many initially wondered whether Israel may have had a hand in the incident. However, to the great relief of most, this appears to have been an accident. Iranian media has so far not alluded to any hostile action being involved in the crash.

Raisi was first elected in 2021 in a controversial election that excluded moderate candidates. Despite his reputation as a religious hard-liner and brutal authoritarian, foreign policy analysts have not appraised him to be a particularly effective president. Amir-Abdollahian appears to have been much more adept in his work as a diplomat. Still, Raisi’s sudden death is likely to have a destabilizing effect in Iran and the wider region in the next weeks and months.

Internal crisis and external pressures

Iran’s constitution calls for new elections to be held within 50 days following a President’s death. For the time being, Vice President Mohammad Mokhber will serve as a caretaker president. As the elections are organized, there will likely be some debate as to the wisdom of following recent policy of excluding more moderate candidates. Since 2021, Iran’s elections have been plagued by ever-lower voter turnout as the population has given up on the idea that positive change can be achieved through electoral politics.

Moreover, it appears that Raisi was being groomed as a potential successor to Iran’s Supreme Ayatollah Ali Khamenei. Khamenei, 85, has held his office in 1989, making him the Middle East’s longest-serving head of state and the 5th-longest-serving in the world. As Supreme Ayatollah, Khamenei has the final say on all political matters. Khamenei handpicked Raisi to become President precisely to avoid frictions presented by previous moderate President such as Hassan Rouhani, who left office in 2021. Given Raisi’s poor performance as President, the region and the world may have dodged a bullet by not having such an ineffectual politician ascend to Iran’s highest (and lifelong) office.

A more immediate problem for the wider region is a potential loss of control over Iranian-backed militias in Iraq, Hezbolla and Yemen. Since January, when three US soldiers were killed in Jordan, Tehran has kept its Iraqi proxies on a tight lead. In normal times, a temporary power vacuum might not pose much of a risk. But these are not normal times.