Karim Khan, the chief prosecutor of the International Criminal Court, was confident he had reached a judicious and even-handed decision. Having concluded that Israeli and Hamas leaders had committed “war crimes and crimes against humanity” in connection with the October 7 massacre and the current war in the Gaza Strip, he issued arrest warrants for all of them.
“If we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse,” he wrote in a submission that still must be approved by the court’s judges
Yet in his effort to be scrupulously fair, Khan stumbled into a minefield and undermined himself and his findings, which are based on a review of documentary evidence and field visits by Khan and his team.
On the one hand, Khan’s warrants relate to Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. On the other hand, they refer to Yahya Sinwar, Mohammed Deif and Ismail Haniyeh.
As far as Khan is concerned, they are all guilty of war crimes. “International law and the laws of armed conflict apply to all,” he wrote. “No foot solider, commander, no civilian leader — no one — can act with impunity.”
His reasoning is unsound, since there is no equivalence between Israel and Hamas, as U.S. Secretary of State Antony Blinken correctly said after the release of the warrants on May 20.
Describing Khan’s verdict as “shameful,” Blinken said, “Hamas is a brutal terrorist organization that carried out the worst massacre of Jews since the Holocaust and is still holding innocent people hostage, including Americans. This decision does nothing to help, and could jeopardize, ongoing efforts to reach a ceasefire agreement that would get hostages out and surge humanitarian assistance in.”
Netanyahu, in his first comment on Khan’s ruling, was bitterly dismissive. “With what chutzpah do you dare compare the monsters of Hamas to the soldiers of the Israel Defence Forces, the most moral army in the world?” he asked with dripping indignation.
As he observed, Hamas “murdered, burned, butchered, raped and kidnapped our brothers and sisters,” while Israeli soldiers are valiantly fighting “a just war” in an effort to dismantle Hamas militarily and ensure it never governs Gaza again.
Benny Gantz, a member of Israel’s war cabinet, was just as indignant. “The State of Israel is waging one of the most just wars fought in modern history following a reprehensible massacre perpetrated by Hamas,” he said in a statement.
Touche.
Hamas ignited this war, hoping to drag in Hezbollah and Iran and turn a localized conflict into a regional conflagration.
In the face of Hamas aggression, Israel is fighting a war of self-defence, while taking measures to keep Palestinian civilians out of harm’s way. This is an incredibly difficult task, since Hamas embeds itself in civilian infrastructure like schools and hospitals and cynically uses civilians as human shields.
Yet, in a sharp rebuke of Israel’s military strategy, Khan has come down hard on both sides, which is manifestly unfair.
Arrest warrants should have been issued only to Hamas, which is at the root of the current bloodshed in Gaza.
Since Israel is not a member of the court, it has no need to recognize its jurisdiction. But Khan’s ruling has already caused serious damage, having stained Israel’s international reputation.
One can only hope that the judges of the court reject Khan’s illegitimate arrest warrants for Netanyahu and Gallant. This is the least they can do to salvage the court’s image.