ICC Warrants: Outrage or Outil?

The body's public request for warrants for 2 Israeli and 3 Hamas leaders is a rare expression of moral clarity that raises hackles -- and some very basic questions.

The International Criminal Court’s (ICC) lead prosecutor Karim Khan took the unusual step Monday of announcing the request for arrest warrants for five individuals accused of crimes against humanity, committed during the ongoing Israel-Hamas conflict.

And, the nominees for crimes against humanity are: Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Gallant, Hamas leader in Gaza Yahya Sinwar; Hamas political chief Ismail Haniyeh (based in Qatar); and military wing leader Mohammed Diab Ibrahim al-Masri (aka, Deif), commander of the Al Qassam Brigades in Gaza.  

Criticism of the ICC’s decision has been fierce, with Israel and its Western allies, notably the US and UK, railing against the decision, while Hamas and other pro-Palestinian groups doing the same, from the opposite position. Both sides are claiming to be the sole victims of the others’ aggression.  The main questions here are 1.) what is the ICC saying and 2.) could it be helpful in securing an end to the current war, and broader regional stability, or is it a case of truth being the enemy of progress?

Background on the Court:

The Court was established by the Rome Statute (an international treaty) in 2002, to prosecute and try genocide, war crimes, crimes against humanity, and crimes of aggression.  124 countries who have signed the Rome Statute.  Several states have signed but not ratified the treaty.  The United States is not a signatory, nor is Israel, China, Turkey, Saudi Arabia, India, Iraq, Indonesia, and North Korea.  The ICC claims jurisdiction over all nationals who have committed crimes in Gaza or the West Bank. 

The Warrant Referral, and the Crimes Committed:

Khan’s statement clearly and concisely -- perhaps for the first time, in the same place -- lists exactly what these individuals, and implicitly their support structures, are accused of doing, based on a preponderance of evidence.  This alone is a positive development, to the extent it leaves little room for obfuscation, exaggeration or posturing.   

With respect to the Hamas leaders, Khan said that his office submits there are “reasonable grounds to believe that Sinwar, Deif (see below) and Haniyeh are criminally responsible for the killing of hundreds of Israeli civilians in attacks perpetrated by Hamas (in particular its military wing, the al-Qassam Brigades) and other armed groups on 7 October 2023 and the taking of at least 245 hostages.”  The charges were specific, and reasonably laid to rest any doubt as to the nature of these crimes:

• Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute.

• Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i).

• Taking hostages as a war crime, contrary to article 8(2)(c)(iii).

• Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity.

• Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity.

• Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity.

• Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and

• Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

With respect to named Israeli officials’ actions, Khan cited the following as grounds for referral:

• Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute.

• Willfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i).

• Willful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i).

• Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i).

• Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity.

• Persecution as a crime against humanity contrary to article 7(1)(h).

• Other inhumane acts as crimes against humanity contrary to article 7(1)(k)

What’s Missing?

What these two sets of charges don’t address is the direct and indirect intent behind these two-sided atrocities. And there’s a reason for that.

One can reasonably infer that Hamas leaders and their backers designed their gruesome atrocities to provoke a disproportionate response which it realized would expose Palestinians to mass casualties and material harm, with which it would accuse Israel of things like … genocide. It is also clear from their public statements that some ministers in Netanyahu’s right-wing government would prefer there to be no Palestinians in Gaza.  Both stances might conceivably constitute “intent to commit genocide.” One of the reasons the ICC did not include genocide charges is that genocidal intent rests within the minds of individuals -- where they are difficult to access.   

Reactions:

Expectedly, there has been a huge outcry about the ICC statement, which the vast majority will take out of literal context. The moderate on Netanyahu’s War Cabinet, Benny Gantz, called the ICC referral a crime of historic proportions. President Biden’s called the prosecutor’s application “outrageous.” Hamas -- and the competing Palestinian Liberation Organization (PLO) -- denounced the ICC statement as “victim-blaming.” Other states like South Africa, which has been pursuing Israel at the International Court of Justice for genocide — and France, welcomed the ‘fairness’ of the approach.

Spain, Norway and Ireland, seem to have reacted (at least in part) to ICC readout by formally recognizing a Palestinian state. On the face of it this action, too, would presumably be more effective if done within a coordinated international framework, in pursuit of specific outcomes.

Practical considerations:

There are those who, while they may agree with the content of the ICC referral, believe it is not so much outrageous as unhelpful, as it will add defensive outrage to the Israeli mix, making a peace deal harder to secure. 

Yet it’s hard to see the ICC readout changing minds that are already hard-wired.  The hardliners in both camps might be egged on by the ICC action, but they’re unreachable at this point, and must be bypassed to reach a solution.    What it might do, is to generate more support for groups like Omdim Beyachad (“We Stand Together”, the Israeli group that is, among other things helping protect aid convoys into Gaza from destruction by violent settlers) and others, notably members of Israel’s senior military brass, who have increasingly called Netanyahu out his lack of a ‘day after’ plan for Gaza.

But there’s also a rarely cited dilemma that the ICC warrants-request addresses, which is a prerequisite for a sustainable peace -- and a sustainable world order.  That is a collective acknowledgement by the global community, that there is no “good guy” in this conflict. If a peace deal does emerge from this mess, let alone a Palestinian state, it must be clear as day to all that Hamas is not being ‘rewarded’ for its behavior, and neither is Israel.  

ICC Warrants as Negotiating Tool

Ideally, the ICC referral would be one instrument amongst a broader set of coordinated incentives and penalties, that move the region towards a stable equilibrium (see previous posts). In brief, that might look something like this:  An Israeli-Saudi normalization (effectively, an expansion of the 2020 Abraham Accords), linked to a “Gaza First” play, whereby a generously reconstructed, and internationally recognized Gaza is administered by a top-flight set of Palestinian technocrats, under Arab custodianship (Saudi, Egypt and the UAE, e.g., each playing very different roles, as financiers, developers and administrators).

Palestinians get a fresh start with a capable state apparatus (no rehabbing the broken Palestinian Authority) and ample investment; Israel and the other Arab states further build an economic and military alliance against what is now almost certain to become a nuclear Iran (which the Biden administration is admitting within the context of negotiations with Saudi Arabia over help with a nuclear power program — The Obama administration’s singleminded focus on the 2015 Iran Deal (JCPOA) coming back to haunt us all).

What we’re not seeing now, in any of the international community’s actions, is coordination, under a powerful lead -- and the only country remotely capable of playing that role right now is the United States. 

It's also worth noting that, even under the best of circumstances, the ICC judgements are rarely enforceable. Their value is more symbolic. Additionally, prosecutors are given leeway in serving the cause of justice. Article 53(2)(c) of the ICC charter allows the Prosecutor to conclude that there is not a sufficient basis for prosecution because it "is not in the interests of justice." Article 16 provides an option for deferral of investigation or prosecution, while Article 27 might be interpreted to provide for commutation of judgement in service to the greater good. So, while the ICC has never been a real tiger, it is a flexible tool.

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In short, while controversial and of dubious impact when issued in a vacuum, the ICC referral is notable for being a balanced statement of fact that clearly explains the nature of the atrocities committed by both sides. It offers a pointed warning to Israelis and Palestinians that they must hold their leaders accountable (and better yet, — repudiate them) if they do not want to be ‘equated’ with their blameworthy actions. It also establishes a moral standard for all parties. Its practical impact, absent coordination with other bodies and powers, is questionable. But its judgements, at least in this case, are arguably a prerequisite for a lasting solution, for there seems to be no other body capable of giving a balanced assessment of the situation. Overall, one is left longing for a benevolent global hegemon with the power and will to solve complex problems.