The ICC Prosecutor’s Request for Warrants

The Peace Palace, home of the ICC, with flowers in the springtime

Okay, I suppose I ought to comment on the decision of the ICC’s prosecutor, Karim Khan, to seek arrest warrants for the leaders of Hamas as well as for Israeli prime minister Netanyahu and defense minister Gallant. I begin as always with my disclaimer: I am not an expert in the relevant law!

First, it’s important to remember that the righteousness of any nation’s or group’s cause in war, or the reasons why the war started, have nothing to do with the legality of the acts taken during the war. In other words, even if you think Israel has no right to exist, that Jews are white, European settler-colonialists oppressing the indigenous people of Palestine, and that attacking Israel on October 7 was 100% justified, that doesn’t makewhat Hamas did on October 7 legal. The experts make this point in a fancy way by distinguishing the jus ad bellum (“Who started it, and was it okay to go to war?”) from the jus in bello (“What did they do in the course of the war, regardless of who started it or why?”). It’s important to acknowledge that this applies to Israel just as it does to the Palestinians. So even though Israel was the victim of an unprovoked and barbaric attack on October 7, and even if you believe that Israel had a right to try to topple Hamas and rescue the hostages by force thereafter, Israel has to prosecute the war according to the laws of war. That’s something the Israeli government itself has always acknowledged.

Second, every honest person knows, without having to know anything detailed about the law, that Hamas is guilty of war crimes on October 7. The intentional mass murder and kidnapping of civilians is obviously illegal. It seems to me that honest people also ought to say that it is possible that Israelis have committed war crimes during the war. Of course it’s possible. It would be absurd to say it is impossible. But because you have to judge the permissibility of attacks under the rules of proportionality, distinction, and so forth, because Hamas is embedded in the civilian population, and because you have to ask about what the Israelis thought they knew and what they intended at the relevant times, it’s just much harder to say anything real than it is to point to the Hamas GoPro videos of the massacre, the calls home to mom to brag about the number of Jews you killed, or the hostage propaganda films, and say, “that’s a war crime.” Of course, the Prosecutor has not focused on Israeli bombing and the incidental damage to civilian lives and property that it caused, perhaps for the kind of reasons I’ve just described. Instead, the Prosecutor’s statement focuses on starvation through limiting humanitarian aid into Gaza. I suppose the same kind of questions arises there. What did Israel do, and why, at various moments? I say again that it is possible that an Israeli official is guilty of a war crime, but it seems to me to be an immensely complicated question, in a way that judging the October 7 massacre is not, especially in light of reports that Hamas takes or diverts aid.

Third, the worst part about the Prosecutor’s announcement is that he decided to announce that he is seeking warrants for the arrests of Hamas’s leaders at the same time that he announced he is seeking warrants for the arrests of Israel’s leaders. The obvious intent is to set up some kind of moral equivalence. I am not privy to what happens in the Prosecutor’s Office, but I see no strong reason, other than the desire to promote the idea of that kind of equivalence, for making the announcement in the way the Prosecutor did. The popularity of the idea that there is a moral equivalence here between the leaders of the group that carried out October 7 and the leaders of the country that has (imperfectly, and with less than a perfect military, diplomatic, legal, or PR strategy) tried to defend itself, to rescue its citizens, and to prevent the next attack, is maybe the best argument for Zionism and the need for a Jewish state in modern times.

Fourth, a couple of comments on what crimes the Prosecutor has not accused Israel and Hamas of committing. It’s notable to me that the Prosecutor has not accused Israel’s officials of genocide. That seems notable in light of the ICJ proceedings brought by South Africa and the discussion about how to understand the ICJ’s indication of provisional measures. Nor has the Prosecutor accused Israel of crimes in connection with its efforts to destroy Hamas and its infrastructure through bombing, flooding tunnels, etc. It’s also notable to me that the Prosecutor has not accused Hamas’s leaders of the crime of aggression. Why not? Again: I am not an expert in this area of the law. But the act of aggression is defined as “the use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” There are other elements of the crime, of course. But when I read the elements, it seems to me that at least on their face, they are clearly satisfied (assuming that Palestine counts as a state, which I think for ICC purposes it must). Why not charge the perpetrators of the October 7 massacre and the instigators of this war with the obvious crime? Perhaps there is a technical reason why the elements are not satisfied? Does someone think that although Palestine is a state for ICC purposes, Hamas, Gaza’s elected government, is not a state actor, such that its actions aren’t the actions of the Palestinian state? Maybe the experts know better, but I find it hard to believe that if you were elected to govern and if you are running the ministries of the government, that you’re not a state actor. Or at least, the scholars who interpret and comment on the law in this area should exert themselves to reach that conclusion, in the same way they worked to reach the conclusion that Palestine is a state that is entitled to accept the ICC’s jurisdiction despite questions about whether it meets the criteria of statehood, which is how we got to where we are.

This post has been edited in various ways since first published.

Image Credit: Iamthestig (CC BY-SA 3.0)

2 responses to “The ICC Prosecutor’s Request for Warrants”

  1. Salem

    Palestine is a (partially-recognised) state, but Gaza is not, and the recognised government of Palestine is the PA, not Hamas. I would imagine that is the rationale, although I do not know how these laws have been applied to non-state actors with persistent territorial control. It certainly seems unsatisfactory if breakaway groups, rebels, unrecognised states, etc, can wage aggressive war with no recourse under international law.

    1. Salem, I sincerely hope that’s not the answer, though I fear it may be. If it is, that’s the kind of casuistry that to me draws the whole enterprise into disrepute.

Leave a Reply

Your email address will not be published. Required fields are marked *

Thank you for commenting! By submitting a comment, you agree that we can retain your name, your email address, your IP address, and the text of your comment, in order to publish your name and comment on Letters Blogatory, to allow our antispam software to operate, and to ensure compliance with our rules against impersonating other commenters.