If the extraordinary five-month delay in issuing the arrest warrants requested in May by the Prosecutor of the International Criminal Court has not been the result of threats from the usual suspects against the ICC, including rumored death threats against the members of the three-judge pre-trial panel responsible for formally issuing these arrest warrants (whose names have unfortunately been made public) and their families but, rather, has been the result of uncertainties regarding the three Palestinians targeted by the Prosecutor, that obstacle would no longer be an obstacle after today's Israeli killing of Yahya Sinwar, the last of three still alive.
Much publicity has been given to the insistence by Israel and its vassal states that the ICC lacks jurisdiction to indict Israelis, because they, unlike the United Nations, three-quarters of UN member states and the ICC, have not recognized the State of Palestine as a state, which, in their arrogant and simplistic view, means that the State of Palestine is not a state.
However, there were potential jurisdictional issues -- indeed, more serious ones -- with respect to the indictment of the Palestinians, in addition to the substantive issue with respect to Ismail Haniyeh noted in my article transmitted below.
The ICC has jurisdiction over war crimes committed on the territory of an ICC member state or by "nationals" (which may or may not be the same as citizens) of an ICC member state.
The State of Palestine is an ICC member state, and the State of Israel is not. It follows that Benjamin Netanyahu and Yoav Gallant, who are indisputably both "nationals" and citizens of the State of Israel, are indictable for their role in any war crimes committed on the territory of the State of Palestine, an ICC member state.
While I do not know what travel document Ismail Haniyeh traveled on, it is doubtful that Yahya Sinwar or Mohammed Deif ever possessed a passport. Indeed, while the Palestinian Authority has issued Palestinian Authority travel documents, the State of Palestine has never issued State of Palestine passports. It is therefore at least arguable that Sinwar and Deif were stateless individuals, not even "nationals" of a state which was not declared as such until after their births, which is potentially relevant to interpreting and applying the term "national". In that case, it was at least arguable that they were not indictable for their role in any war crimes committed on the territory of the State of Israel, which is not an ICC member state.
In any event, now that all three potential Palestinian indictees have been killed by Israel, achieving the martyrdom which they must have anticipated and may well have preferred to natural deaths, the issues before the pre-trial panel have been substantially reduced, the threat of serious punishment of the ICC if it were to issue arrest warrants only against Israelis has been removed and there is now reason to hope that the richly deserved arrest warrants against Benjamin Netanyahu and Yoav Gallant will be issued soon.
NOTE: I have a personal reason to be sensitive to the issue (and non-issuance) of State of Palestine passports. On November 30, 2012, the day after the historic acceptance of the State of Palestine as a UN observer state, with only nine negative votes in the General Assembly, I wrote to my friends in the Palestinian leadership of my hope that "when the State of Palestine starts issuing State of Palestine passports, I will be honored with one. If I could be legally Palestinian, as well as Palestinian in my heart, I could die happy."
Palestinian Foreign Minister Riad Malki promptly responded: "Dear John: I promise you such passport. You deserve it and it will be an honor to offer it to you on behalf of the Palestinian leadership. Many thanks for everything, and congratulations to you too."
Unfortunately, if unsurprisingly, the State of Israel promptly made clear that it would not recognize a State of Palestine passport as a valid travel document for entering or leaving Palestine/Israel.
Accordingly, like all Palestinians, I am still waiting for a State of Palestine passport.
On the ICC’s Announcement of Arrest Warrants for Netanyahu, Gallant and Hamas’ Leadership
by John WhitbeckMay 20, 2024
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.