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RULE OF LAW INTERNATIONAL CRIMINAL COURT Opinion Six experts weigh in on the ICC’s warrants on Israeli and Hamas leaders ... A momentous decision has sent shockwaves around the world. Was it the right one? Karim Khan, chief prosecutor for the International Criminal Court, in Bogotá, Colombia, on April 25. (Luis Acosta/AFP/Getty Images) Original article: https://www.washingtonpost.com/opinions/2024/05/21/icc-arrest-warrant-israel-hamas-debate/ Peter Burgess COMMENTARY https://thehill.com/hilltv/rising/4677010-rising-may-21-2024/ https://thehill.com/hilltv/rising/4677010-rising-may-21-2024/ Peter Burgess
Opinion Six experts weigh in on the ICC’s warrants on Israeli and Hamas leaders A momentous decision has sent shockwaves around the world. Was it the right one? By Washington Post staff May 21, 2024 at 1:29 p.m. EDT On Monday, Karim Khan, the chief prosecutor of the International Criminal Court, announced that he was seeking arrest warrants for both Israeli and Hamas senior officials on charges of war crimes and crimes against humanity. Post Opinions asked six experts for their view of the decision. Avi Mayer: The ICC has united Israel in opposition In the immediate aftermath of the pogrom perpetrated by Hamas on Oct. 7, Israelis of all backgrounds and beliefs came together in a demonstration of unity seldom seen in this country. The impassioned debates of the preceding months seemed to vanish overnight as the country rallied behind efforts to support the victims of the carnage and the families of the hostages — and to ensure that Hamas can never again carry out a comparable massacre. As the war against Hamas dragged on, however, deep disagreements arose about its direction, postwar planning and the price that ought to be paid to free the hostages still held by Hamas. The street protests of last summer have returned in force, and fissures have developed in Israel’s war cabinet, threatening the government’s stability and the country’s internal cohesion. That is, until Monday. International Criminal Court prosecutor Karim Khan’s announcement that he will seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant alongside Hamas leaders Yehiya Sinwar, Ismail Haniyeh and Mohammed Diab Ibrahim al-Masri (better known as Mohammed Deif) has produced a groundswell of anger and indignation that has united the country once again. Netanyahu’s political foes and potential challengers have rallied to his defense, and 106 of the Knesset’s 120 members — including most of the opposition — have signed a statement slamming Khan’s apparent comparison of Israel’s leaders to the mass murderers of Hamas as “scandalous … an indelible historic crime and a clear expression of antisemitism.” To Israelis, the suggestion of moral equivalence between their democratically elected government — no matter how much they might detest it — and a terrorist group that openly and actively seeks their destruction is repulsive and contemptible. The notion that any comparison could possibly be drawn between the Jewish state, endeavoring to defend itself in the wake of the worst massacre of Jews since the Holocaust, and the perpetrators of that very massacre — who have promised to repeat it “time and again” until that state is annihilated — is horrifying. The world might have moved on from Oct. 7, but Israelis have not. A nation that just this week buried the mutilated bodies of four of its people brutally murdered that terrible day will not soon countenance attempts to deny it the right of self-defense. Any effort to tie Israel’s hands while comparing it to the cruel and implacable foe against which it is defending itself will be met with wall-to-wall resistance and steely determination. Avi Mayer is a former editor in chief of the Jerusalem Post. Kenneth Roth: Biden’s response harms U.S. interests The Biden administration’s reasons for condemning the International Criminal Court’s move against Israel and Hamas are confounding. It appears to be grasping for a way to defend senior Israeli officials for their starvation strategy in Gaza — a strategy that senior U.S. officials themselves have repeatedly decried. President Biden called chief prosecutor Karim Khan’s request for arrest warrants for senior Israeli officials “outrageous,” noting that “there is no equivalence — none — between Israel and Hamas.” But Khan did not say there was equivalence; he simply charged both sides for their separate crimes. The dual charges help underscore that war crimes by one side never justify war crimes by the other. Biden also said the United States “will always stand with Israel against threats to its security.” But the issue is how Israel defends itself. No defense justifies war crimes. Secretary of State Antony Blinken claimed without elaborating that “the ICC has no jurisdiction.” He could be referring to the old U.S. argument that the court cannot charge nationals of governments that have not joined it, even if they commit crimes on the territory of a government that has. Israel has not joined the ICC, though the Palestinian territories have. But Biden abandoned that argument when he called the ICC’s use of territorial jurisdiction to prosecute Russian President Vladimir Putin “justified.” Or, Blinken might be alluding to the view that Palestine should not have been allowed to join the court. But the ICC judges have already rejected that argument, based on the U.N. General Assembly’s recognition of Palestine as a “non-member observer state.” Palestine has used that status to ratify a host of human rights treaties, which should be welcomed. Blinken notes that the ICC, under the principle of complementarity, is supposed to defer to good-faith national prosecutorial efforts. But the Israeli government has never pursued war crimes charges against senior officials. Khan said he would reconsider his charges should that change. Finally, Blinken says the ICC’s request “could jeopardize” efforts to reach a cease-fire. But, historically, war-crime charges have often facilitated peace by marginalizing hard-liners. They led, for example, to the Dayton peace accord for the Bosnia conflict. Khan is right to discount this contention. Biden should reconsider this reflexive, if flimsy, defense of the Israeli government. It does enormous damage to his administration’s efforts to portray itself as a principled supporter of the rule of law. Kenneth Roth was executive director of Human Rights Watch from 1993 to 2022. John R. Bolton: The ICC is illegitimate As I first wrote in 1998, the International Criminal Court is fundamentally illegitimate. It’s illegitimacy is why America unsigned the court’s founding Rome Statute in 2002, and has kept its distance since. Now, reawakening from a protracted irrelevance, the ICC has intervened in an ongoing conflict in which a vibrant democracy is defending itself from barbarians, seeking arrest warrants for both Hamas terrorists and for key Israeli officials on highly contentious charges. The ICC’s existence rests on the fantasy that a court drifting somewhere in the international ether, untethered to any constitutional structure, unchecked by distinct legislative or executive authorities, and utterly unable to enforce its decisions, will somehow impose order on an anarchic world. But the hard reality is that the ICC is at best meaningless, and at worst dangerous. For Americans, a purported court supervising its own prosecutors merges executive and judicial functions, which our forefathers rejected as dangerous to liberty. Certainly, the ICC’s Assembly of States Parties doesn’t supervise the court. And the absence of jury trials is obviously unacceptable. ICC acolytes argue that “complementarity” protects sovereign nations against ICC overreach, by supposedly deferring to the state’s courts to prosecute any war crimes. But complementarity is merely an academic pretense that this prosecutor has revealed to be no protection at all: If the ICC can so easily second-guess the decisions of a democratic, rule-of-law state, then the ICC, not Israel, has controlling sovereignty. What’s more, intervening while the war rages starkly reveals the prosecutor’s irresponsibility. Amid intense combat, with escalatory risks readily apparent, the indictment might well prolong the war. How wars end is a matter of power and politics; the pretensions of unaccountable “judges” at The Hague play no role. Israel should receive full U.S. backing. Jerusalem and Washington should not cooperate in any way with the ICC, which would simply provide it a patina of legitimacy. In 2018, I laid out a road map for sanctions against the ICC if it pursued the United States or its allies, which Congress is now considering. If this is to be war with the ICC, let it begin here. The ICC has finally and irreversibly begun digging its own grave. John R. Bolton served as U.S. ambassador to the United Nations from 2005 to 2006 and U.S. national security adviser from 2018 to 2019. James A. Goldston: Biden must uphold international law As someone who has served within the Office of the Prosecutor of the International Criminal Court, and whose organization has worked closely with the ICC, I welcome Monday’s announcement by the prosecutor. The court has faced many tests in its first quarter-century. But this is the most important. It is critical that the panel of judges now reviewing the prosecutor’s request for warrants do so independently, free from any threat or intimidation. And if they ultimately decide to issue one or more warrants, the United States and its allies must support the court, notwithstanding past U.S. objections to its jurisdiction over nationals of nonmember countries. Anything less would be a betrayal of the “international rules-based order” that Washington has proudly defended since Nuremberg. Just last year, following Russia’s full-scale invasion of Ukraine in 2022, the Biden administration and members of Congress applauded the ICC’s issuance of an arrest warrant for Russian President Vladimir Putin for war crimes. Late in 2022, Congress passed legislation allowing ICC officials to conduct “investigative activities” in the United States “related” to Ukraine, even though Russia — like Israel and the U.S. — isn’t a state party to the court. But in recent weeks, the White House made clear its opposition to ICC action, and 12 Republican senators went so far as to threaten to “target” the ICC prosecutor and his staff with “severe sanctions” and travel bans. What’s the difference? The law has not changed. Nor has the imperative of holding to account those most responsible for grave crimes. If warrants are issued, many topics will merit discussion: their impact on precarious peace negotiations, the unlikelihood that they will be executed anytime soon, and the opportunity for Israel to demonstrate that, contrary to past practice, its domestic judiciary is capable of — and willing to — hold senior leaders to account. But what the world should not tolerate is impunity for war crimes. At a time of rising global concern about double standards, the United States will pay a price for appearing to pick and choose where the law should apply. James A. Goldston is the executive director of the Open Society Justice Initiative. Noura Erakat: The ICC warrants are not about justice The International Criminal Court is incapable of delivering justice. And while its request for arrest warrants bears out this cynical argument, it did set a significant precedent. Significant flaws are built into the form and content of the ICC. For example, the court’s emphasis on individual criminal culpability, in contrast with the International Court of Justice, comes at the expense of scrutinizing state crimes and ideologies. The ICC also ignores the historical context, including significant power relations, for the sake of procedural due process. The Rome Statute, which established the court, does not consider colonialism to be a core crime, so the worst crimes committed by former colonial powers — here, Israel’s forced displacement and repression of Palestinians over decades — are beyond judicial reach. So it is not surprising that the court requested warrants for three Hamas leaders but only two Israeli ones, and that it charged Hamas leaders with eight crimes and Israeli leaders with only seven. The court charges Hamas with sexual violence and mistreatment of hostages while remaining silent on sexual violence and other forms of torture inflicted on Palestinians in Israeli captivity. All the charges are limited to acts committed on and since Oct. 7, even though the ICC initiated its investigation in 2021. Palestinian human rights organizations have been petitioning the court for the past nine years, documenting crimes committed during the Gaza March of Return in 2018 and 2019, Israeli military offensives in 2014 and 2021, and Israel’s 17-year siege, as well as the crime of settlement expansion in the West Bank. Despite all this, the court does not charge any Israelis with genocide or apartheid. The warrants for Hamas leaders were predictable and expected. Not only did the political organization submit itself to the ICC’s jurisdiction, but Western governments are already punishing Hamas with economic sanctions and diplomatic marginalization. Israel, on the other hand, has long benefited from a global legal exception, thanks in large part to the United States’ defense at the U.N. Security Council. The request for arrest warrants finally breaks the taboo on charging Israel and challenging the paradigm that has collapsed Jewish safety with Israeli state crimes. Although the warrants, on their own, will not bring justice, they have cracked the wall that has shielded Israel from accountability and obscured the crisis of the Palestinian right to life and dignity. Noura Erakat is an associate professor at Rutgers University and the author of “Justice for Some: Law and the Question of Palestine.” José Ramos-Horta: When is the cost of friendship too high? On Dec. 7, 1975, my country, Timor-Leste, was invaded by our much larger neighbor, Indonesia. A few days earlier, I had traveled to New York to plead our cause at the United Nations. On Dec. 22, the U.N. Security Council passed a resolution deploring the invasion and demanding the Indonesian forces withdraw. Nothing happened. We had no court to turn to for recourse. Over the next 24 years, one-third of our population would lose their lives. But throughout, we resisted hatred and never demonized the other side. Our fighters never harmed civilians, women or children. Peace came about when Indonesia opened up for democracy and accepted Timor-Leste’s independence. The International Criminal Court did not exist when we needed it. But it might hold hope for those Israelis and Palestinians whose lives have been considered expendable. I have long been a friend of Israel. After Timor-Leste achieved independence in 2002, one of the early acts of our new government was to recognize Israel. I am also a friend of the Palestinians. I have traveled to both Israel and the West Bank on official visits. I knew my fellow Nobel Peace Prize laureate Shimon Peres and, of course, closely followed the work of Nobel Peace Prize laureates Menachem Begin, Anwar Sadat and Yitzhak Rabin, two of whom gave their lives working for a just resolution to the Israeli-Palestinian conflict. The Abraham Accords, between Israel and several Arab states, were a “peace deal” between parties that had not been at war — a transaction for the financial benefit of the countries involved and a supposed resolution of an extremely complex issue by a diplomat whose background was in real estate deals. The Palestinians would simply be discarded, their humanity monetized. This shady deal was shattered by the violence of Hamas on Oct. 7, followed by the obliteration of Gaza by Israeli Prime Minister Benjamin Netanyahu. Friends become accomplices when they stay silent in the face of crimes — such as the slaughter of teenagers at a music festival, the killing of U.N. and World Central Kitchen workers, and the bombing of areas where civilians are sheltering. Many Western democracies have discredited themselves by making excuses for what are war crimes and crimes against humanity. Neither side of this conflict deserves what its leaders have wrought. Peace is never an impossibility. Friends of Israelis and Palestinians must encourage them to rise up from hatred and wars and share the Holy Land. José Ramos-Horta is the 1996 Nobel Peace Prize laureate and is serving his second term as President of Timor-Leste. About guest opinion submissions The Washington Post accepts opinion articles on any topic. We welcome submissions on local, national and international issues. We publish work that varies in length and format, including multimedia. 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