Who’s Above the Law? Israel, Hamas and the ICC

While statements that “No one is above the law,” are repeated in the U.S. over the trials of former President Donald Trump, can the same be said internationally? By analogy, Chief Prosecutor Karim Khan of the International Criminal Court (ICC) said yes when he announced he was seeking arrest warrants for Hamas leader Yahya Sinwar and Israeli Prime Minister Benjamin Netanyahu on charges of war crimes and crimes against humanity.

Israeli and Hamas leaders are being held accountable for their drive for battlefield victory outside internationally accepted laws of war. For example, after Israeli Prime Minister Benjamin Netanyahu met with U.S. officials in December 2023, he said in a video statement; “I told our American friends: Our heroic soldiers have not fallen in vain. Out of the deep pain of their having fallen, we are more determined than ever to continue fighting until Hamas is eliminated – until absolute victory.” Netanyahu’s goal; not just victory, but “absolute victory” with Hamas’ elimination.

On February 25, 2024, Netanyahu told U.S. television: “Once we begin the Rafah operation, the intense phase of the fighting is weeks away from completion. Not months,” he told CBS. “If we don’t have a deal, we’ll do it anyway. It has to be done because total victory is our goal and total victory is within reach.”

Khan said in announcing the request for search warrants to CNN’s Christiane Amanpour that he made a distinction between the crimes committed by Hamas and Israeli leaders: “The charges against Netanyahu and [Israeli Defense Secretary Yoav] Gallant include ‘causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict.’” Netanyahu’s actions for “total,” “absolute victory” are, according to the ICC’s chief prosecutor, in flagrant violation of international humanitarian law.

As for Hamas, Khan said he believes Hamas leaders Yehia Sinwar, Mohammed Deif and Ismail Haniyeh are responsible for war crimes and crimes against humanity in the Gaza Strip and Israel. In his statement about Hamas, Khan wrote: “It is the view of my Office that these individuals planned and instigated the commission of crimes on 7 October 2023, and have through their own actions, including personal visits to hostages shortly after their kidnapping, acknowledged their responsibility for those crimes.”

Hamas responded to Khan in a statement that it “strongly condemns the attempts of the ICC Prosecutor to equate victims with aggressors by issuing arrest warrants against a number of Palestinian resistance leaders without legal basis.”

“Hamas calls on the ICC Prosecutor to issue arrest warrants against all war criminals among the occupation leaders, officers, and soldiers who participated in crimes against the Palestinian people, and demands the cancellation of all arrest warrants issued against Palestinian resistance leaders,” they added.

External international legal experts who assisted the ICC in examining the evidence confirmed Khan’s findings against Israel and Hamas. Objectively, they wrote in their published report; “we unanimously agree that the prosecutor’s work was rigorous, fair and grounded in the law and facts. And we unanimously agree that there are reasonable grounds to believe that the suspects he identified have committed war crimes and crimes against humanity within the jurisdiction of the ICC.”

While the answer within the United States about Trump’s being above the law remains to be seen – Trump’s having immunity or giving himself pardons if he is found guilty and then re-elected – the international answer by analogy is more problematic. The ICC has no police force; states who have signed the Rome statutes (there are 124) are supposed to arrest fugitives. The ICC cannot try defendants in abstentia.

Moreover, Israel and the United States have strongly rejected Khan’s position if not the ICC’s legitimacy. Neither has signed the Rome statutes. Prime Minister Netanyahu said that the country “will never accept any attempt by the I.C.C. to undermine its inherent right of self-defense.” Just as the Kremlin called a previous warrant against President Putin “outrageous,” President Biden, cherry-picked his attitude towards the Court, also calling the prosecutor’s demand for search warrants against Israel “outrageous” while previously praising the Court’s warrant for Putin. (Under President Trump, in 2020 the U.S. even went so far as to authorize economic sanctions against ICC officials investigating or prosecuting U.S. military personnel for alleged war crimes in Afghanistan. Sanctions against the ICC are once more being discussed in Congress and hinted at by Antony Blinken.

Khan has boldly given his answer to the tension between national subjectivity and international objectivity: “”Nobody is above the law,” he clearly stated. His demand for warrants strongly counters a typical American position expressed by President Trump before the U.N. General Assembly in 2018; “We reject the ideology of globalism, and we embrace the doctrine of patriotism. Around the world, responsible nations must defend against threats to sovereignty…”

The international system is inherently different from domestic sovereignty. There is no international sovereignty. We duly note the German sociologist Max Weber’s classic definition of a state as a “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” The international system has no such monopoly on the legitimate use of physical force on a global scale.

What does make the ICC’s chief prosecutor’s request for warrants unique in the tension between state sovereignty and international law is that “It is the first time the court has targeted a Western democracy with a vibrant court system or the top leaders of a close U.S. ally,” law professor David Kaye wrote. Karim Khan has taken on an enormous challenge. His very request for warrants has caused an enormous stir. If successful – the warrants issued – his victory will be a victory for objectivity over subjectivity; a victory far removed from any win on a battlefield, and far, far away from some simple athletic competition. It will be a profound victory for justice.

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