I.C.C. Prosecutor Requests Warrants for Israeli and Hamas Leaders (2024)

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From “The New York Times,” I’m Sabrina Tavernise, and this is “The Daily.”

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Earlier this week, the top prosecutor of the International Criminal Court requested arrest warrants for Israel’s prime minister and its defense minister. The move shocked Israelis and set up a possible showdown between the world’s top criminal court and Israel, together with its biggest ally, the United States. Today, my colleague, Jerusalem Bureau Chief Patrick Kingsley, explains.

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It’s Thursday, May 23rd.

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So, Patrick, earlier this week, there was a pretty surprising announcement by the International Criminal Court in The Hague. It had to do with Israel and Hamas. Tell us what happened.

Well, on Monday morning, we were all taken by surprise by an announcement from the chief prosecutor at the ICC, the International Criminal Court, the top criminal court in the world. It tries individuals accused of war crimes. And the chief prosecutor announced that he was requesting arrest warrants for five individuals involved in the war between Israel and Hamas for crimes against humanity. Three of them were from Hamas — Yahya Sinwar, the head of Hamas within Gaza, the Hamas military commander, and the political leader of Hamas, who’s based in Qatar.

But maybe the biggest news in this announcement was that the chief prosecutor was seeking the arrest of two of Israel’s top leaders — Benjamin Netanyahu, the prime minister, and Yoav Gallant, the defense minister. And this was a massive bombshell. These two men are leaders from a major US ally. They’re in regular contact with the US government, and they were being implicitly equated with the three top leaders of an organization, Hamas, that many consider a terrorist organization. And this equation sent shockwaves through Israeli society and, indeed, around the world.

So this is absolutely remarkable, Patrick. I mean, I, for one, was quite surprised by seeing this. I want to dig into it with you. So who is this prosecutor behind these requests for these warrants? And how did he reach this decision to go for them in the first place?

So the prosecutor’s name is Karim Khan, and he is a British lawyer, a British barrister. He is 54. He’s led a very impressive career. He has spent years working on human rights cases, both defending people and also prosecuting in such cases.

He was involved in tribunals related to the wars surrounding the breakup of the former Yugoslavia, Rwanda. He investigated Islamic State crimes in Iraq. And in 2021, he is appointed the top prosecutor at the ICC.

And what are his responsibilities as top prosecutor?

Well, it’s his job to travel the world and investigate allegations of human rights abuses, war crimes, crimes against humanity, and in the process, plays a key role in deciding who gets prosecuted at the International Criminal Court. The ICC and the ICC prosecutor investigates and tries people who would not be pursued by the judicial system within their countries of origin. It steps in when it seems like the domestic authorities in any given country are not doing their job.

And last year, he famously went after President Putin in Russia in connection with the war in Ukraine.

So at what point did this prosecutor, Karim Khan, turn his attention to Israel and Gaza?

Well, he actually inherits an investigation from his predecessor that’s looking at Israel’s conduct and also that of Hamas during a previous war in 2014 between the two sides. But then that gets superseded on October 7th by the horrors that we saw that day committed by Hamas and then by the scale and damage caused by Israel’s bombing campaign in its counterattack.

And we begin to see not only revulsion and horror at what Hamas had done in early October, but also growing criticism and condemnation of what Israel and its Air Force did in its response. You’ll remember that earlier this year, the International Court of Justice, a separate court also in The Hague, began to address claims that Israel was and is committing a genocide in Gaza, a claim that Israel strongly denies.

Right. That was the case that South Africa brought. We did an episode about that.

Yes, exactly. So as the world’s attention focuses on this new conflict, so does Karim Khan’s.

We start to see him arrive in Israel visiting some of the sites that Hamas attacked last year, talking to survivors, talking to leaders, reviewing security camera footage, and so on.

And he also visited the Rafah crossing between Egypt and Gaza, talks to Palestinians.

He goes to the Israeli occupied West Bank, to Ramallah, where the Palestinian Authority is based, building up evidence that led to this announcement on Monday.

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And he makes this very dramatic announcement in a video.

Flanked on each side by two of his deputies.

And the accusations that he makes against the three Hamas leaders focus on the violent actions that Hamas took on October 7th.

And he walked through a long list of charges stemming from the extraordinary violence during that attack.

And he says there are reasonable grounds to believe that hostages taken from Israel have been subject to sexual violence, including rape, while being held in captivity. And he cites assessment of medical records, video, and documentary evidence, as well as interviews with victims and survivors.

So this prosecutor sees the atrocities on October 7th and then what followed with Hamas taking the hostages, abusing them, as crimes against humanity. That’s what it amounted to in his view?

Exactly.

And what about the charges against the Israelis?

These are slightly different.

Obviously, a lot of the outcry and horror at the war in Gaza has centered around Israel’s airstrikes that have killed tens of thousands of Gazans. But Karim Khan focuses not on the military actions of Benjamin Netanyahu and Yoav Gallant, his defense minister, but on the accusation of —

— starvation. The idea that Israel has allegedly sought to restrict and block aid deliveries, food supplies to Gaza with the intent to starve the civilian population there.

And that’s primarily based on the fact that for the first two weeks of the war, until October 21st or so, Israel blocked all aid entry to Gaza after Yoav Gallant, the defense minister, one of these two Israelis whose arrests Mr. Khan seeks, said that he was imposing a total siege on Gaza — no food, no fuel, no electricity. And while that total siege was eased towards the end of October, Khan also notes that there have been continuing restrictions on essential supplies, like food and medicine, ever since.

The implication is that the famine that he says is present in some areas of Gaza and imminent in other areas is in part the responsibility of Netanyahu and Gallant.

Why is the focus of these charges starvation? I mean, given that the airstrikes, as you say, were in many ways really the focus of this war and certainly the focus of the world’s attention on this war, the civilian deaths from the military operation. Why starvation?

Karim Khan does not explain why he focuses on starvation rather than Israel’s military tactics, which he mentions only in passing. But legal experts have said that it’s easier to prove that starvation was used as a method of warfare than it is to prove that there have been any specific crimes involved in any specific airstrikes. And that’s because under the rules of war and international law, it’s not necessarily illegal in and of itself to kill civilians during wartime. If a military assesses, with the help of military lawyers, that the likely civilian death toll caused by that strike is proportional to the value of the military target, then that, in many cases, will be in accordance with the rules of war. If a military can prove that sense of proportionality, then it’s actually quite hard to prove that there was any crime committed in the process.

So in other words, military actions are often weighed quite carefully. In the case of, say, a modern military like Israel’s or the United States, there are lawyers that look at these things. It’s not necessarily so easy to prove that something was disproportionate and should be considered a crime.

Exactly. Whereas with the crime of starvation, legal experts say that it’s potentially easier to prove that there was some wrongdoing there because Yoav Gallant, the Israeli Defense Minister, went on record in a public statement, and he announced that there would be a total siege on the territory of Gaza. And that was followed by an action, the action of closing off Gaza’s borders for the next two weeks, and no aid was allowed in. During that time, there were restrictions on electricity, water, fuel, as well as food. And that’s why legal experts think that Karim Khan has gone after Israel with the crime of starvation rather than focusing on their military operations.

But I suppose just thinking about our coverage, Patrick, and the conversations you and I have had, famine and starvation and a civilian population in extreme distress trapped in a small piece of territory is also not a small thing, right? That is also something that makes sense that the court would be considering.

Absolutely, it’s a huge thing. People don’t have to be hit by an airstrike to be living through an absolutely catastrophic situation.

So these charges really seem to spell bad news for Israel and for these two Israeli leaders, Netanyahu and Gallant. And it’s remarkable because these are men who, as you say, are some of America’s closest allies. I mean, they’re, you know, at the Pentagon. They’re having meetings with President Biden. And now, the chief prosecutor of the ICC is saying that they are war criminals.

Yes, it is a very dramatic moment in the view of some people, a turning point, and certainly, we can say that it is one of the harshest rebukes of Israel’s wartime conduct since October 7th.

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But within Israel, there’s been a very different reaction. And it’s not all bad news for Benjamin Netanyahu.

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We’ll be right back.

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So, Patrick, what do Israelis make of this announcement?

Within Israel, the reaction has been very different. Whether it’s Netanyahu’s allies or his critics, there has been almost uniform outrage that the prosecutor for the ICC would make these accusations. And it means that at a time of rising domestic criticism of Prime Minister Netanyahu across the political spectrum, with only a very few exceptions, everyone has rallied behind Netanyahu and Gallant. Despite the fact that Netanyahu is increasingly unpopular and even within his own government, there have been growing criticism of his wartime strategy.

For example, just two days before the prosecutor’s announcement, one of the senior members of his own wartime cabinet, Benny Gantz, issued Netanyahu with an ultimatum, warning him that he would quit the government if he did not spell out a plan for a post-war Gaza. Then, suddenly, the announcement comes from Karim Khan that Netanyahu and Gallant are under investigation. And Gantz is one of the first to come out with a condemnation of Karim Khan and a defense of the Israeli government. That is the clearest example of how even critics of Netanyahu have fallen in line, circled the wagons, and presented a united front.

This is really interesting. So this action by the prosecutor has kind of had the effect of actually closing divisions that were starting to appear in Israeli society, effectively bringing Netanyahu’s critics kind of back into his camp, or at least making it harder to criticize him.

Exactly. And Israelis, in general, feel that Israel has always been targeted unfairly, held to a higher standard than many other countries, and that this is, once again, another example of that, another example of Israel being accused of things that other countries do but get away with. And there have been broadly three criticisms from the Israelis of the ICC prosecutor.

First, the Israeli claim is that the ICC prosecutor is making a horrible false equivalence between Hamas, a terrorist organization, and Israel, a democratic state. Hamas raided Israel and launched the bloodiest attack on Jews in a single day since the Holocaust. Israel, in the eyes of Israelis, is fighting a righteous response to protect their citizens and to win back the liberty of the hostages that were captured on October 7th.

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And Netanyahu himself articulated some of the clearest versions of this argument when he went on American television.

And he called Khan’s decision absurd, an effort to demonize Israel and to hold it to far higher standards than any other country. He said it would have been as if after 9/11 —

— arrest warrants had been issued for both Osama bin Laden and George Bush.

The second criticism from Israelis has been about process. The ICC was created about two decades ago by a treaty. More than 120 countries have signed that treaty, but Israel has not. And Israel contends that the prosecutor doesn’t have the authority, therefore, to go after Israeli political leaders.

Israelis also say that Khan didn’t spend enough time assessing whether Israel was itself investigating these allegations within its own judicial system. Remember that the ICC is a court of last resort. It’s only supposed to intervene when a domestic judicial system is genuinely not making any effort to investigate the alleged crime.

And Israelis are saying that Khan didn’t spend enough time investigating Gallant and Netanyahu. The ICC prosecutors have spent 10 years investigating alleged crimes committed during a previous war between Israel and Hamas, but this decision has been issued within just a few months. And Israelis are saying that Khan jumped the gun in that sense.

So the Israelis are saying, look, we’re trying to get to it, but you just didn’t give us enough time.

Exactly. And they’ve even said that Khan’s team was supposed to be coming this very week to continue that conversation and assess whether Israel was genuinely looking into these allegations by itself. And that they misled Israel by pretending that they would be making that assessment when, in fact, all along they were planning to request arrest warrants.

Interesting. So for Israeli officials, they’re seeing it as a kind of activist thing, as opposed to a neutral judicial decision.

That’s their claim, at least. The prosecutor’s office says that they have tried to sincerely engage with Israel on this issue, but that it’s become clear to them that Israel does not seriously investigate this kind of crime.

So you said, there are three elements to this. What’s the last?

The third and last element is on the content of the claim itself. Israel flatly denies that it is responsible for the humanitarian crisis in Gaza. It even denies that there is a famine or that the situation is on the point of a famine. It points out all the ways in which it has worked to get much more aid into Gaza since October, including opening more crossings, allowing the US to create a pier on the shoreline of Gaza. It’s allowed some countries to airdrop aid. And certainly, the amount of aid that has gone in recent months has dwarfed the amount that was going in October and November.

And while it accepts that its soldiers have obstructed and, at times, even killed aid workers, it says that that obscures the fact that it coordinates every day in detail with aid groups to facilitate thousands of aid missions every month.

Isn’t Israel’s argument that these shipments could also include things that could be very useful for Hamas, the group that just killed 1,200 of its citizens?

Exactly. No one’s disputing, least of all Israel, that Israeli officials are examining all the aid going into Gaza. The dispute is about whether that’s necessary. Israel says it is. It says that if it didn’t check, then some of these aid convoys might be smuggling in weapons or material that could be used to fight Israel, to kill Israeli civilians. And that, therefore, Israel has no choice but to examine some of these goods going in. Again, the counterargument is that Israel’s checks are far more stringent than they need to be and end up preventing the entry of everyday items that pose no military threat.

OK, so that’s the Israeli perspective. How does the United States see the prosecutor’s request here? I mean, the US, obviously, Israel’s biggest ally.

Well, the American president, President Biden, condemned it in no uncertain terms. He said the prosecutor’s decision was outrageous. And he condemned him for drawing an implicit equivalence between Hamas and the leaders of the state of Israel.

And why did Biden come out so strongly against the prosecutor? We know that humanitarian aid has been a major concern for this administration. So why would Biden be so opposed to something that really is calling out Israel for this aid?

First of all, because Israel is a major ally of the United States, and the United States wants to show support for its ally. Second of all, they fear that this kind of criticism, this kind of intervention, will actually make Israel less, rather than more, likely to bring the war to a halt, because the feeling is that it will make Israel more defensive and in turn batten down the hatches.

The third reason is that the United States, historically, has never been a particular fan of the International Criminal Court. We mentioned earlier that Israel did not sign the treaty that created the ICC. Well, the United States did not do that either. And that’s in part because American leaders fear that having an international global court undermines American sovereignty. They think it’s the role of the American judicial system to investigate American citizens.

And there is a fear that with the United States so active militarily in many parts of the world, that membership of the court, involvement in the court could pave the way for American soldiers being tried for acting on behalf of the United States. And that could somehow dent American foreign policy goals across the world.

OK, so the United States doesn’t really like this court, you know, has troops in a lot of places, doesn’t want a court swooping in and prosecuting them when something goes wrong. But I guess the question then, in my mind, Patrick, is does what this prosecutor is doing matter? I mean, America is not a signatory. Israel is not a signatory. So why is this important?

Well, for the time being, its meaning is more symbolic than anything else. First, Karim Khan has not issued an arrest warrant. He has requested an arrest warrant for these five people. And three judges will now spend weeks and possibly months deciding whether to uphold those requests. That process can be less than a month. In the case of Vladimir Putin, it was just shy of a month. President Bashir of Sudan was issued with a warrant. That process took roughly a year.

When and if they do do that, however, there will be practical effects. If an arrest warrant is issued, it means that any country that’s a member of the International Criminal Court, in theory, should arrest any of these individuals if they enter their territory. That includes more than 120 countries all over the world, much of Europe, Latin America, Africa, and so on. Yes, it’s true that the United States and Israel are not signatories, and neither are Turkey or Qatar, two of the countries where Hamas officials spend much of their time when they’re outside Gaza. So there will still be places for officials on either side of these accusations to travel to.

But there are lots of other countries, like France, Italy, both places where Benjamin Netanyahu traveled in the past year, where, in theory, they will not be able to set foot.

So the negotiations over the war can still continue, but if Netanyahu travels to France or to Italy, he could be arrested, which is pretty wild.

Yes, at least that’s the theory. The national authorities in any given country still have to make a choice about whether they want to follow through with it.

But would those countries perhaps not arrest him out of deference to the United States?

I think the expectation is that if we got into this scenario, then someone like Netanyahu simply just wouldn’t travel to such a country. But the truth is, we just don’t really know. We are entering unchartered waters.

So this is really isolating Netanyahu in the world. Should it go forward?

Yes, isolating Netanyahu and to some extent Israel itself. And it has not just practical implications for the physical movement of Netanyahu and his defense minister, Gallant, but it also compounds Israel’s relationship with foreign allies. It complicates Israel’s ability to arm itself. More countries may grow more unwilling to sell Israel arms, or at least they’ll face growing pressure because of this decision not to do so.

And it also could force the country to become ever more reliant on the United States as it becomes more of a pariah over its actions in Gaza.

Which, of course, puts the United States in an even trickier position with an ally who’s been pretty hard to be friends with of late.

Right. And in truth, while the practical consequences of this move are still unknown, they do, in general, compound the sense that Israel is facing more and more diplomatic consequences for its actions. More than a decade ago, a former Israeli prime minister warned that Israel would face what he called a diplomatic tsunami if its conflict with the Palestinians went unresolved.

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And it’s possible that years later we’re starting to finally see what he meant. Israel does still have its supporters, many of them, but we’re also now seeing during this war a level of criticism that goes above and beyond the kind that we’ve grown used to seeing directed at Israel over the years.

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In addition to the warrant requests we’ve seen this week, we’ve obviously had an extraordinary wave of protests on American campuses and elsewhere in the world. And earlier this year, we had a watershed moment when the International Court of Justice began hearing accusations of genocide against Israel. And this week, several European countries recognized Palestine as a state.

Wow.

So if the tsunami hasn’t yet arrived, we can at least say that the waves are getting stronger.

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Patrick, thank you.

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On Wednesday, the leaders of Spain, Norway, and Ireland announced that they would recognize an independent Palestinian state. The move was largely symbolic, but raised the concern that if neighboring countries followed their lead, Europe could become a counterweight to the American position that statehood for Palestinians should come only from a negotiated settlement with Israel.

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We’ll be right back.

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Here’s what else you should know today. Nikki Haley, the former United Nations ambassador who dropped her Republican presidential bid in March, said on Wednesday that she would vote for Donald Trump but stopped short of officially endorsing him. Haley was Trump’s longest standing rival in the 2024 primary contest and had carved out an important lane for herself as the voice for voters looking for an alternative to the former president. Her decision on whether to endorse him could play a pivotal role in the race. Haley has built a formidable network of high-dollar donors and a solid base of college-educated voters that Trump needs to win.

And the city of Uvalde, Texas, has reached a settlement with most of the families of children who were shot by a gunman at Robb Elementary School in 2022. To avert a lawsuit, the city promised to overhaul the city’s police force, create a permanent memorial to the victims, and pay $2 million.

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Today’s episode was produced by Will Reid and Diana Nguyen with help from Shannon Lin. It was edited by Liz O. Baylen with help from Michael Benoist, contains original music by Elisheba Ittoop, Marion Lozano, and Pat McCusker, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

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That’s it for “The Daily.” I’m Sabrina Tavernise. See you tomorrow.

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