For as long as Hamas has been in power, it has had as its goal to create a moral equivalency between itself and Israel. When Israel calls Hamas a terrorist organization, Hamas and its supporters refer to Israel as a terrorist state.When Israel claims that Hamas is seeking to carry out a genocide against Jews, Hamas and its supporters claim that Israel is committing genocide against Palestinians. When Israel says that Hamas has raped and sexually abused Israeli hostages, Hamas and its supporters say that Israel has raped and sexually abused Palestinian prisoners. When Israel says that Hamas is lying, Hamas and its supporters say that Israel is lying.
Hamas has been able to do this very effectively because it does not wage war according to the rules. If Hamas were fighting another terrorist organization rather than the Israeli armed forces, it might have been destroyed already.
But by operating under no restrictions and simply embedding itself in between, above, and underneath the civilian population and infrastructure, preventing Palestinian civilians from fleeing, blaming its own attacks on Israel, and manipulating the casualty figures, Hamas can easily fool the untrained eye that Israel is perpetrating heinous crimes against Palestinian civilians.
That is to the untrained eye. The trained eye typically knows better. It is no wonder then, that when one of the best-trained eyes, the Prosecutor of the International Criminal Court (ICC), a strong judicial institution responsible for bringing justice to thousands of victims of international crimes globally, issued arrest warrant applications for three senior Hamas leaders, as well as for Israel’s Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant, it was perceived by many around the world as drawing a moral equivalency by Hamas and Israel, finally cementing Hamas’s efforts.
In a surprise interview, Prosecutor Karim Khan KC gave to the Sunday Times on 25 May 2024, he dismissed these perceptions.“I am not saying that Israel with its democracy and its supreme court is akin to Hamas, of course not,” he stated in the interview. Other lawyers have since commented that there is nothing strange about the ICC prosecuting both sides to a conflict at the same time. But Khan’s words ring hollow when reading the allegations in the arrest warrant applications.
Accusations against leaders
Top Hamas operatives Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh have been accused of murdering hundreds of Israeli civilians on October 7, 2023, and taking at least 245 hostages, which they have tortured, raped, kept in inhumane conditions, and subjected to cruel and degrading treatment.
Netanyahu and Gallant have been accused of intentionally starving Palestinian civilians, deliberately attacking them, wilfully killing them, exterminating or murdering them, persecuting them, and carrying out other inhumane acts against them from at least October 7, 2023, until today.
The ICC Prosecutor would have you believe that the crimes of the senior Hamas leaders began and ended on 7 October 2023, except for the continued holding of the hostages. There is no mention of Hamas’s crimes against its own civilians, its continuous indiscriminate rocket barrages, its use of human shields and booby traps, or its use of hospitals, schools, United Nations facilities, and even mosques as rocket launchpads or weaponry hubs.There is no mention of Hamas’s responsibility for the alleged starvation, for the killing of Palestinian civilians, the way that it has sought to maximize civilian casualties on its own side, and how it has subjected its own people to tremendous suffering, including by hijacking humanitarian aid and selling it on the black market to Gazan civilians for extortionate prices. A recent study by the Washington Institute for Near East Policy suggested that Hamas has profited close to half a billion dollars in this way since the start of the war.
In his statement announcing the arrest warrant applications, Khan refers to the suffering and starvation in Gaza as “acute, visible and widely known.” It would have been well within his powers (and indeed within the jurisdiction of the Rome Statute) to expand the application for arrest warrants for the Hamas senior leaders to include the substantial evidence, including from Gazans themselves, implicating Hamas in these crimes.
Why did he not do so? Even if he thought Israel’s leaders bore responsibility for most of that suffering, why would he decide to completely exonerate Hamas? Are there really no reasonable grounds to believe that Hamas is responsible for any of it?
Why completely exonerate Hamas?
One reason for it may relate to the ICC’s dwindling reputation amongst African and Asian states. The Court has for years struggled to defend itself against accusations of racism, with some states claiming its investigations have been disproportionately focused on crimes occurring in African and Asian jurisdictions while turning a blind eye to any alleged atrocities carried out by Western states. One wonders if these longstanding fears of being perceived as biased, untrustworthy and perhaps, as a result, unfundworthy, may have contributed to the unprecedented circumstances in which the recent arrest warrant applications were made.
In a report published by the ICC in early February 2024, a number of unnamed “legal representatives of victims” in Palestine were quoted as cautioning the ICC that “narratives about the Court’s absence and alleged double standards with regard to different Situations are gaining ground among the victims’ communities in Palestine” and that victims were “looking for the Court to make itself known, felt and present in Palestine where faith in international justice and the ICC is rapidly dwindling.”
The same report urged the ICC Prosecutor to intensify his investigation and “issue warrants of arrest without delay.” One would not want to speculate that the Prosecutor rushed to issue his arrest warrant applications against Netanyahu and Gallant out of pressure from Palestinian interest groups, but it is certainly curious that he, in his Sunday Times interview, seemed particularly keen to highlight that the Court is no longer pandering to the “post-colonial world." “Much more important than me or the ICC, the world is looking at this situation. In Latin America, Africa, and Asia, they see this as a crystallizing point. Are powerful states sincere when they say there’s a body of law or is this rules-based system all a nonsense, simply a tool of Nato and a post-colonial world, with no real intention of applying law equally?”
But Israel, with its democratically elected leaders, adherence to the rule of law, and internationally respected court system seems an odd choice for the Prosecutor to seek to rectify the ICC’s reputation with. The country ranks 33rd out of 188 in Transparency International’s Corruption Perception Index, which measures the strength and independence of domestic justice systems, on par with South Korea, Lithuania, and Portugal.
By contrast, other situation countries under investigation by the ICC, including Russia, the Central African Republic, and Sudan, rank 141st, 149th, and 162nd, respectively. The very standard for judicial independence – the Mount Scopus International Standards – was developed at Hebrew University in Jerusalem by a former member of the Israeli Parliament.
Israel’s Supreme Court decisions have been relied on by states and international courts in a plethora of cases. What is more, Israel has a history of finding its politicians accountable for criminal acts, and more than one of its former heads of state and government as well as a number of ministers have served time in prison for crimes of which they have been convicted.
Since the late 1960s, based on the decision of former Attorney General Meir Shamgar, the Supreme Court of Israel has heard petitions by Palestinian individuals and organizations against the Israeli government and several of its organs, including the IDF. Any suggestion that Israel’s justices would be somehow incapable of fairly and independently applying the law and the facts in a case involving its leaders is frankly absurd.
This leads us to the next point. The ICC was founded on the principle of complementarity. Its jurisdiction to prosecute is secondary to the jurisdiction of domestic judicial systems. But, as Khan made clear in his announcement, this “requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham. It requires thorough investigations at all levels addressing the policies and actions underlying these applications.”
Since Israel is not a party to the Rome Statute and has not voluntarily accepted the jurisdiction of the ICC, the prosecutor had to circumvent this inconvenience, which it did by simply recognizing Palestine as a state for the purposes of the Rome Statute and exercising its jurisdiction over Israeli leaders because the alleged crimes took place on Palestinian territory.
It is, in effect, a checkmate. At the same time as it is waging a war against Hamas, Israel’s government and courts are expected to collectively work together to initiate an investigation into Netanyahu and Gallant for the war crimes and crimes against humanity of which they have been accused. Refusal will be interpreted as an attempt to shield the alleged perpetrators from criminal responsibility and pave the way for the ICC to take over.
Had the arrest warrant applications been issued a few years down the line, after the war had long ended, an Israeli court may very well have decided to initiate an investigation into the allegations. But to expect it to do so while over 200 of its people continue to be held hostage by Hamas and while it is engaged in an active war against an organized terrorist group is unrealistic, and Khan must have known that his timing would tie the hands of Israeli authorities behind their backs. That is why it feels sinister.
Moreover, shielding a suspect from criminal responsibility is one thing, and deciding that there is insufficient incriminating evidence to prosecute is quite another. The ICC itself has closed investigations due to a lack of evidence.
Nothing in the ICC rules require a domestic court to issue a conviction to prevent the ICC from exercising its jurisdiction (indeed, this would undermine the presumption of innocence) – the rules require only a genuine willingness and ability to carry out an investigation or prosecution.
Indeed, even a few years down the line it would be hard to see how an Israeli court, operating independently and in accordance with the rule of law, could find a basis to prosecute Netanyahu and Gallant for deliberate starvation and other war crimes and crimes against humanity, considering the lack of reliability and credibility of the Hamas-issued facts and figures, and the substantial amount of evidence to the contrary.
That evidence includes the United Nations’ own figures, which suggest that not only has Israel facilitated the entry of sufficient food and water to sustain the entire Gazan population throughout the war, but that Gazans have been receiving nearly three times the amount of food they need. Recent official studies have confirmed these reports, finding that the amount of food delivered to Gaza in the first four months of this year constituted on average 40% more calories than the minimum daily amount required in a crisis.
Yet, remarkably, when confronted with this information in his Sunday Times interview, Khan dismissed it entirely, asking readers instead to “look at what the major relief agencies are saying…look at the images of emaciated children”. Images may tell a thousand words, but there are some crucial words they do not tell. And these are the words ascribing liability to the responsible parties. Again, the lack of reference to Hamas is staggering.
Khan's team
Another point bears mentioning. Khan went to great lengths to assemble a team of highly respected international lawyers, who were to review the available evidence and give their stamp of approval to the arrest warrant applications. Despite emphasizing their independence, Khan was quick to highlight in his interview that one of these esteemed lawyers was Professor Theodor Meron, an “Israeli Jew who was an adviser to Israel and a Holocaust survivor – are they going to call him antisemitic?”
If anybody wanted to believe Khan’s experts were chosen for their expertise rather than for who they are, he confidently and swiftly shut that down with this statement. Setting aside that it is a glaring example of tokenism – the practice of symbolically including a representative of a minority group to give the appearance of inclusivity or lack of bias – which is in itself racist, it naturally makes one question the reasons Khan may have had for choosing the other experts in his team.That two of them have made public statements in the last year accusing Israel of committing war crimes and equating the IDF with Hamas, in stating that both of them have been engaged in “terrible conduct” may or may not have been a relevant factor in that choice.
The arrest warrant applications are not public, nor is the evidence that Khan and his team have relied on, and the ICC Judges must still decide whether to actually issue any of the arrest warrants. But should they decide to do so, the ICC and its prosecutor will need, in due course, to explain why they chose to disregard both the publicly available evidence of Hamas’s continued responsibility for war crimes against both Israeli and Palestinian civilians throughout this war, and the evidence which appears to contradict the allegations raised against Israel’s leaders directly. The explanation could not come soon enough.
Olivia Flasch is a Legal Consultant in Public International Law, with a particular focus on armed conflicts and international criminal law. She holds a Master of Law (MJur) from the University of Oxford.
Ami H. Orkaby, is a renown international lawyer and former adviser at the Israeli Prime Minister’s Office.