ICC Warrants Against Netanyahu and Gallant may be the First of Many Aimed at Israeli Officials – David Kattenburg 5/20/24

Source: Mondoweiss.net

“I think this is an enormous step forward,” former UN Special Rapporteur Michael Lynk tells Mondoweiss. “Today’s announcement was a long time in coming.”

Applications for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and three top Hamas leaders have been filed by the Chief Prosecutor of the International Criminal Court.

Warrants must be approved by a Pre-Trial Chamber before they are issued, and that approval may take months.

Flanked by his two senior trial prosecutors, this afternoon in The Hague, Chief ICC Prosecutor Karim Khan declared that “reasonable grounds” existed for charging Yahya Sinwar, Hamas’ leader inside Gaza, Mohammed Diab Ibrahim Al-Masri (aka Deif), the Commander-in-Chief of its military wing, the Al-Qassam Brigades, and Ismail Haniyeh, the head of Hamas’ political bureau, with a host of war crimes and crimes against humanity committed since “at least October 7.”

Among these: extermination, murder, hostage-taking, rape and other acts of sexual violence, torture, cruel treatment, outrages upon personal dignity, and other inhumane acts.

Hamas’ alleged crimes, Khan declared today, were “were part of a widespread and systematic attack against the civilian population of Israel,” continuing to this day.

Then the bombshell.

On the basis of evidence received by his office, Khan also announced that Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant “bear criminal responsibility” for a host of war crimes and crimes against humanity.

Among these: starvation of Gazan civilians as a method of warfare, wilfully causing great suffering or serious injury in the besieged enclave, wilful killing or murder, intentionally directing attacks against a civilian population, extermination by starvation, persecution and other “inhumane acts” committed from at least October 8, all part of a “widespread and systematic attack against the Palestinian civilian population pursuant to State policy.”

And, more may follow.

“Our investigation continues,” Khan announced today. “My Office is advancing multiple and interconnected additional lines of inquiry, including concerning reports of sexual violence during the 7 October attacks, and in relation to the large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza … My Office will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met. I renew my call for all parties in the current conflict to comply with the law now.”

Khan has much to prosecute, going back to the start of the temporal scope of its Palestine investigation in June 2014. This would cover Operation Protective Edge, in 2014, the 2018-2019 Great March of Return, and Khan’s lowest hanging fruit, not mentioned at all in today’s arrest warrant statement: Israel’s settlement enterprise – a flagrant breach of the Fourth Geneva Convention, and a war crime under the Rome Statute of the ICC.

“Enormous step forward”

Mondoweiss spoke about today’s announcement with Michael Lynk, professor of law at Canada’s Western University, and former UN Special Rapporteur on the human rights situation in occupied Palestine.

“I think this is an enormous step forward,” Lynk told Mondoweiss.

“Some of us were not sure this was ever going to wind up coming, or coming in a manner that it did. What [Khan] has done is to say that there are bright red lines with respect to international law, that there are consequences, that no one is above the law,”

“Today’s announcement was a long time in coming,” Lynk added.

Long time indeed.

Palestine acceded to the Rome Statute of the ICC on January 1, 2015 – a move fiercely opposed by the U.S. and other Western Powers. Then-Chief Prosecutor Fatou Bensouda responded by opening a “Preliminary Investigation” into the “Situation in Palestine.”

Palestine followed up in May 2018, specifying specific Israeli violations of the Rome Statute committed by Israel since June 13, 2014. It was a strategic start date. Israel’s Operation ‘Protective Edge’ unfolded in July and August of that year. Over two thousand Gazans were killed, and almost 11,000 wounded, including 3,374 children, over a thousand of whom were permanently disabled.

Given the “complex legal and factual issues” at stake, in late 2019, Bensouda referred the Palestine case to the court’s Pre-Trial Chamber, asking if the ICC had territorial jurisdiction within the occupied Palestinian territory.

Yes, it did, judges opined in early 2020, and Bensouda proceeded. On March 3, 2021, she announced the initiation of a formal investigation, to be pursued “without fear or favour.”

In June 2021, Bensouda’s term of office ended, Karim Khan’s tenure began, and the Palestine “Situation” ground to a halt, plummeting to the bottom of the prosecutorial barrel.

Questions of anti-Palestinian bias

Khan is a hard-nosed British barrister with a reputation for honesty and determination. He also has a distinctive worldview. Unlike Fatou Bensouda, a Gambian, Khan is “geared towards” NATO, U.S. and UK interests, a highly informed source told Mondoweiss.

Within a month of Russia’s February 2022 invasion, Khan opened an investigation. With unparalleled speed, almost exactly a year later, he announced arrest warrants against Vladimir Putin and the Russian Federation’s Commissioner for Children’s Rights.

Western powers were delighted. No one had more say than the U.S., which is not a signatory to the Rome Statute but was more than happy to help Khan pursue Putin.

In contrast, Khan seemed disinterested with the Palestine “Situation.” His 2023 budget spoke volumes, with Palestine spending under a million Euros that year (versus Ukraine, at 4.5 million) and having a staff of six (23 on Uganda; 12 on Ukraine).

“For Khan, at least until the end of October [2023] when he visited the Rafah border … the Palestine investigation did not exist for him,” a European attorney engaged with the OPT told Mondoweiss. “He never said one word.”

Khan has visited the OPT twice since October 7 but has yet to dispatch a single investigator to either Gaza or the West Bank (admittedly difficult, given Israel’s refusal to cooperate).

In the wake of mounting carnage in Gaza, and charges of genocide, Khan could have issued a “preventive statement,” the European attorney told Mondoweiss. Bensouda issued one of these in October 2018, regarding the imminent eviction of the Bedouin community, Khan al-Ahmar, the attorney pointed out. Israeli authorities didn’t carry out the forced transfer.

Instead, silence on Palestine prevailed at the ICC. Why?

Because Russia-Ukraine was his top case, and he didn’t want to jeopardize it, several sources told Mondoweiss.

“[He’s] heavily dependent on the Americans for intelligence information [on Ukraine],” one of those sources, an informed human rights academic, told Mondoweiss. “I think the quid pro quo is that he move slowly on Israel.”

That quid pro quo – if it existed – was just tossed under the bus….

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