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The decision of Karim Khan, the International Criminal Court\u2019s chief prosecutor, to publicly seek arrest warrants<\/a> for the leaders of Hamas and Israel this week will be one of the most significant and contentious of his career.<\/p>\n Khan accused<\/a> three Hamas leaders of war crimes and crimes against humanity relating to the Oct. 7 attack on Israel and hostage taking<\/a>. He also accused Israel\u2019s prime minister, Benjamin Netanyahu, and its defense minister, Yoav Gallant, of war crimes and crimes against humanity during Israel\u2019s military operation in Gaza, including the starvation<\/a> of civilians. Now a three-judge panel will consider whether to issue the warrants.<\/p>\n Some countries welcomed the news as a sign that all individuals, regardless of their state or status, are equal before the law, while others \u2014 including the United States, Israel\u2019s most important ally \u2014 denounced the charges and accused Khan of false equivalence in pursuing warrants for Hamas and Israeli leaders at the same time.<\/p>\n Khan didn\u2019t have to announce the warrant applications publicly. He could have waited until they were granted, as with the warrant for President Vladimir V. Putin of Russia last year \u2014 a process that can take weeks or months.<\/p>\n<\/div>\n<\/div>\n So why did he go public now and with such fanfare \u2014 issuing not only a news release<\/a>, but also social media videos and a prerecorded interview<\/a> with CNN?<\/p>\n The answer lies partly in the extraordinarily polarizing nature of this conflict, in which any legal intervention would be subject to deep scrutiny. It\u2019s also about what the prosecutor\u2019s office hopes to achieve as military action continues in Gaza, famine looms and hostages remain in captivity.<\/p>\n As things stand, there is almost zero chance that Netanyahu or Gallant will ever be arrested on these charges. Even if the warrants are issued, the men would be safe as long as they don\u2019t travel to any I.C.C. member states, because Israel does not recognize the court or its jurisdiction in Gaza, and the court itself has no powers of arrest. Prospects of getting the Hamas leaders in custody are similarly dim.<\/p>\n But the I.C.C., which was established in 1998, has a mandate to pursue cases even when there is little likelihood of cooperation from the targeted individuals or the states where they reside.<\/p>\n When I asked the prosecutor\u2019s office why he had chosen to go public now, a spokesperson said by email that it was because of Khan\u2019s \u201csignificant concern regarding the ongoing nature of many of the alleged crimes cited in the applications.\u201d<\/p>\n<\/div>\n<\/div>\n If war crimes are taking place, the legal process carries urgency because it may prevent further harm. The role of the I.C.C., which investigates and, where warranted, tries individuals charged with the gravest crimes, is not only to bring prosecutions after<\/em> war crimes are committed, but also to prosecute cases in which crimes are still happening, in the hope of halting or deterring further violations.<\/p>\n Since the early weeks of the war, Khan has tried to use his role as a bully pulpit to do just that. In an October speech in Cairo, he warned Hamas that hostage taking was a crime under the Rome Statute of the I.C.C., as well as a grave breach of the Geneva Conventions, and called for the immediate release of all hostages and their safe return to their families.<\/p>\n In that same statement, he described seeing aid trucks lined up at the Rafah crossing, unable to deliver supplies to civilians in Gaza. \u201cImpeding relief supplies as provided by the Geneva Conventions may constitute a crime within the court\u2019s jurisdiction,\u201d he said, calling on Israel to make \u201cdiscernible efforts, without further delay, to make sure civilians receive basic food, medicine, anesthetics.\u201d<\/p>\n In his interview with CNN on Monday, Khan said his message to the parties of the conflict had long been \u201ccomply now, don\u2019t complain later.\u201d But, he said, Hamas had failed to release its hostages, and Israel had continued to impede aid supplies, leading to \u201cstarving children.\u201d<\/p>\n<\/div>\n<\/div>\n The choreography of the announcement on Monday, including Khan\u2019s media appearances and the publication of a separate report by a panel of independent experts<\/a>, seemed aimed at presenting the evidence for the charges as fully as possible, and pre-empting some of the criticism that was bound to follow.<\/p>\n<\/div>\n<\/div>\n \u201cKarim Khan has to maintain the legitimacy of the office of the prosecutor and the International Criminal Court,\u201d said Kevin Jon Heller, a professor at Copenhagen University who is a special adviser to the prosecutor on war crimes. Heller said he was giving his opinion rather than any \u201cinside information\u201d about the prosecutor\u2019s motives, adding: \u201cI think it is important for the public to have an even better understanding of the process in this situation than in all of the others, because it involves a sitting head of state and a sitting minister of defense in a West-leaning country with very powerful Western friends.\u201d<\/p>\n The panel of legal experts published an opinion article<\/a> in The Financial Times in which they also underlined the need for transparency, writing: \u201cThis conflict is perhaps unprecedented in the extent to which it has given rise to misunderstandings about the I.C.C.\u2019s role and jurisdiction, a particularly fractured discourse and, in some contexts, even antisemitism and Islamophobia.\u201d<\/p>\n American officials were quick to criticize Khan for simultaneously announcing requests for warrants against the leaders of Hamas, a U.S.-designated terrorist organization, and the leaders of Israel, a democracy. Secretary of State Antony J. Blinken called the warrant requests \u201cshameful.\u201d \u201cWe reject the prosecutor\u2019s equivalence of Israel with Hamas,\u201d he said in a statement<\/a> on Monday, noting Khan\u2019s decision to go \u201con cable television.\u201d<\/p>\n Netanyahu also said in a statement about Khan\u2019s actions that day, \u201cHow dare you compare the monsters of Hamas to the soldiers of the Israeli Army, the world\u2019s most moral military?\u201d<\/p>\n<\/div>\n<\/div>\n Hamas issued a statement saying that it \u201cstrongly denounces\u201d the attempt to \u201cequate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders.\u201d<\/p>\n Supporters of the I.C.C. have argued that there was no equivalence<\/a> in the announcement: The prosecutor laid out the specific charges against three Hamas leaders, and then, in a separate section, listed an entirely different set of charges against Netanyahu and Gallant.<\/p>\n But the decision to issue the requests simultaneously was also, in some sense, the point: a public demonstration that Khan would not discriminate in his application of the law.<\/p>\n \u201cIf the I.C.C. is to uphold this idea that the rule of law applies equally to everybody, then when it has evidence of crimes committed in one context, and another, it should treat both equally,\u201d said Rebecca Hamilton, a law professor at American University. To do otherwise would risk \u201csending a message that \u2018Well, if you\u2019re a U.S. ally, then we won\u2019t proceed with trying to challenge you,\u2019\u201d she said.<\/p>\nDisclosure as deterrence<\/strong><\/span><\/h3>\n
Transparency<\/span><\/h3>\n
\u2018Airbrush out the nationality\u2019<\/strong><\/span><\/h3>\n