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Global News International justice Actu Published on May 21, 2024 17:01. /
Updated on May 21, 2024 17:21.


ICC PROSECUTOR 'DID THE RIGHT THING’ IN SEEKING ARREST OF ISRAELI AND HAMAS
LEADERS, SAYS ALAIN WERNER

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By Aline Jaccottet
ICC Prosecutor Karim Khan, pictured at the International Criminal Court, 16 June
2021. (ICC)
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By requesting arrest warrants on Monday against leaders of Israel and Hamas,
Karim Khan has angered Israel but proven that he is “capable of withstanding
pressure,” according to Civitas Maxima’s founder Alain Werner.

Israel’s foreign minister called it “a historical disgrace that will be
remembered forever”. For a Hamas official in Gaza, the decision “equates the
victim with the executioner” and will encourage the continuation of the “war of
extermination”. On Monday afternoon, the chief prosecutor of the International
Criminal Court (ICC), Karim Khan, succeeded in scandalising both Israeli and
Hamas leaders with a single statement.

Khan began by listing the crimes of both parties. He stated that he had
“reasonable grounds” to believe that Israeli prime minister, Benjamin Netanyahu,
and his defence minister, Yoav Gallant, “bear criminal responsibility for war
crimes and crimes against humanity committed on the territory of the State of
Palestine (in the Gaza Strip) from at least 8 October 2023”. He described “a
widespread and systematic attack against the Palestinian civilian population,
pursuant to state policy”. 

His words came as Gallant met with United States national security adviser Jack
Sullivan in Tel Aviv on Tuesday and reaffirmed his determination to extend the
offensive in Gaza.

Hamas leaders were not spared either. Yahya Sinwar, the leader in Gaza, Ismail
Haniyeh, who heads the political bureau, and Mohammed Deif, who leads the armed
wing, are “criminally responsible” for the murder of hundreds of Israeli
civilians during the 7 October attack, an act amounting to “extermination”, the
statement reads. They are also guilty, according to the prosecutor, of taking at
least 245 hostages, “held in inhumane conditions, and some...subjected to sexual
violence, including rape, during their captivity”. As a result, Khan is asking
the ICC to issue arrest warrants for the five men: Netanyahu, Gallant, Sinwar,
Haniyeh, and Deif.

The statement was well received by Palestinians. “The prosecutor acknowledges
the crimes committed in Gaza. Even if we doubt that his initiative will lead to
the imprisonment of an Israeli official, at least things are being said,” said
Hamed Qusai, a professor at Al-Quds Open University in Jerusalem. 

As for the Hamas leaders, “classified as terrorists by several states”, the text
won't change much. “They are used to being targeted by international
prosecutions. And then, the court would have a hard time enforcing an arrest
warrant: Yahya Sinwar and Mohammed Deif have been evading Israel for months,
hiding in a Gaza tunnel!” Qusai said.


‘THE PROSECUTOR GAVE IN TO THE RIOTERS’

In Israel, however, Khan’s announcement has caused an uproar. Bymentioning
Israel and Hamas in the same communiqué, the prosecutor  seeks to “put both
parties to the conflict on an equal footing” that conceals “deep
contradictions”, asserted Israeli lawyer Yaacov Garson, a specialist in
international law. “Hamas' crimes, proven by an investigation, are assumed and
glorified by their perpetrators. Facts and intentions are fully characterised
under the Rome Statute.” 

In contrast, Garson said, “the leaders of the democratic state of Israel, lumped
together with the leaders of a terrorist movement, are judged only on their
presumed intentions”.  He cited the statement, which refers to “the deliberate
starvation of civilians” or “intentional homicides”.

In reality, the deaths and destruction in Gaza are the unintended consequences
of war, highly regrettable but not illegal under international law, said Garson,
who noted that in January, “the International Court of Justice could not prove
genocidal intent on Israel's part. And there is none: it would suffice for Hamas
to surrender and release the hostages for us to end this war”. 

For the lawyer, if Khan persists, it is because he is “under pressure”.: “The
prosecutor has given in to the pro-Palestinian rioters and vandals who attribute
a destructive intent to Israel under the guise of compassion for the
Palestinians,” he said, alluding to recent protests in European and US campuses.


TEST FOR INTERNATIONAL JUSTICE

Alain Werner, founder and director of Civitas Maxima, an international network
of lawyers and investigators based in Geneva representing victims of
international crimes, has a completely different interpretation of Khan's
announcement, of whom he is a close associate. “His statement shows that he can
resist political pressure two years after indicting Vladimir Putin in a historic
decision. Karim Khan did the right thing: he surrounded himself with a panel of
international law legends and subjected himself to a legal review of the
process,” Werner asserted. 

For Werner, Khan may be getting his vindication. “He was criticised for his
inaction; some said after indicting Putin that he was playing the West's game.
Today, he is demonstrating his independence.” And he plays the game with
finesse, according to Civitas Maxima’s director. “By publicly announcing his
request to the court, he prevented the judges from making their decision behind
closed doors, procrastinating or doing nothing.”

Targeted by Netanyahu, who called any ICC arrest warrant against Israel a
“historic outrage” last month, the prosecutor commented on US channel CNN: “No
one is above the law.” As Israeli-US anger rose on Monday, with President Joe
Biden calling Khan's decision “outrageous”, the stakes are immense for the ICC.
If the court decides to act on the prosecutor's request, the targeted
individuals could be arrested upon entering the territory of any of the 124
states party to the ICC, which relies on the goodwill of its members. This would
present, according to Werner,  “a significant issue of legitimacy for the
signatory states to the Rome Statute”. 

“Would they live up to their duty? For international justice, it would be a
moment of truth,” he said.

This article was originally published in French in Le Temps. It has been adapted
and translated into English by Geneva Solutions. Articles from third-party
websites are not licensed under Creative Commons and cannot be republished
without the media’s consent.

International justice Israel-Gaza war War crimes
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Geneva Solutions content is licensed under Creative Commons BY 4.0.




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