Karim Khan, chief prosecutor, International Criminal Court. Photo: ICC.
It had been widely anticipated that, to maintain any institutional respect, the International Criminal Court would have to indict some Israeli leaders, unavoidably including Prime Minister Netanyahu, in connection with the Gaza genocide and that, for balance, it would choose to indict at least one Hamas leader at the same time.
Its announcement Monday of applications for five arrest warrants and the strong language of its announcement, particularly coming from a British Prosecutor who had previously been suspected of being totally subservient to the British government, is excellent news.
However, it offered three surprises:
(1) ANNOUNCING APPLICATIONS FOR ARREST WARRANTS
It is normal ICC practice to announce the issuance of arrest warrants only after the court’s judges have approved them on the basis of an application from the Prosecutor.
This was the procedure followed last year when the court announced the issuance of arrest warrants for President Putin and for Russia’s commissioner for children’s rights.
The decision to announce these applications for arrest warrants prior to their formal approval may have been motivated by a sense that the conditions under which the people of Gaza are striving to survive are deteriorating so rapidly and horrifically that there is no time to waste and by a hope that announcing the applications now might have a positive impact on the decisions of relevant decision-makers for whom arrest warrants are not yet being sought but could be sought later.
(2) NOT SEEKING AN ARREST WARRANT AGAINST GENERAL HALEVI
When rumors of imminent ICC indictments started swirling several weeks ago, three Israeli leaders were cited as targeted — Prime Minister Netanyahu, Defense Minister Gallant and General Herzi Halevi, Chief of General Staff of the IDF. Arrest warrants are now being sought only against Netanyahu and Gallant.
The Prosecutor may be hoping that not indicting General Halevi or other top military officers for the time being while stating explicitly that his office “will not hesitate to submit further applications for warrants” if conditions are met might encourage them, in their own self-interests, to try to rein in their political leadership and to wind down or even wind up Israel’s genocidal assault against the people of Gaza.
(3) SEEKING AN ARREST WARRANT AGAINST ISMAIL HANIYEH
It was widely reported at the time that Hamas Political Bureau head Ismail Haniyeh and other members of the external leadership of Hamas had no advance knowledge of the October 7 operation, which makes attributing “criminal responsibility” to Haniyeh for the events of that day surprising.
It is possible that, in the hope of mitigating American fury and the publicly threatened American retaliation for any indictments of Israelis, the Prosecutor thought it desirable to seek arrest warrants for more Palestinians than Israelis. Within Gaza, Yahya Sinwar and Mohammed Deif are the only widely recognized personalities to whom responsibility might be attributed. Hence, perhaps Haniyeh was added to achieve the desired Palestinian majority.
In these circumstances, it is possible that the court’s “independent judges” might show their independence by not issuing an arrest warrant against Haniyeh, which should not upset the Prosecutor if he was adding Haniyeh primarily to achieve a Palestinian majority.
If an arrest warrant were to be issued against Haniyeh, he might, with good reasons to hope for an acquittal, choose to turn himself in to the court and, thereby, to set a good example for (and contrast to) Netanyahu and Gallant.
Indeed, Sinwar and Dief might at least be tempted to do likewise if they could find a way to be safely extricated from the Gaza Strip.
Since October 7, their future has offered only martyrdom — and not necessarily a quick and easy one. They may well be reconciled to martyrdom or actively seek it, but they could also view the chance to live out their natural lives and to defend themselves and their acts on the basis of the right of an occupied and oppressed people to self-defense against perpetual occupation and oppression and on the basis of 10/7 Truth as a viable and even attractive alternative.
It has also been widely reported that Netanyahu is personally obsessed with killing Sinwar and Deif and determined to pursue his assault against Gaza until he achieves that goal.
If that goal were to become impossible because Sinwar and Deif had successfully turned themselves in to the court, thousands of lives might be saved.
John V. Whitbeck is a Paris-based international lawyer.