“Extermination as a crime against humanity”, “torture”, “extermination and/or murder” – these were just some of the grave accusations made by International Criminal Court Prosecutor Karim Khan this week as he sought arrest warrants for several leading Israeli and Hamas figures over the October 7 attacks and the continuing war in Gaza. While accusations have hardly been in short supply when it comes to the Palestinian-Israeli conflict, this development is qualitatively different.
Although Mr Khan is seeking the arrests of Yahya Sinwar, Mohammed Deif and Ismail Haniyeh of Hamas, who would be held criminally responsible for the violence meted out by Palestinian militants against Israeli civilians on October 7, the Israeli side of the charges are getting much attention. Israeli leaders are being confronted with legal charges that challenge their country's image of itself as well as its international reputation.
From a position of insisting that its military is a fundamentally righteous actor in a sea of hostile neighbours, Israel now faces legal accusations that not only cast international doubt on that claim but recast two of the country’s most important leaders – Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant – as suspected criminals on the world stage.
Mr Netanyahu’s reaction was one of unbridled indignation. He accused Mr Khan of creating “a twisted and false moral equivalence between the leaders of Israel and the henchmen of Hamas”. US Secretary of State Antony Blinken echoed that sentiment, calling Mr Khan’s application “shameful”.
This argument of equivalency is a straw man – an attempt to deflect criticism of Israel’s aimless war in Gaza, and one that does not stand up to scrutiny. Mr Khan is drawing no such comparison between Israel and Hamas. The leaders of both have been charged, for the most part, with distinct crimes that reflect the distinct ways in which they have allegedly brutalised civilians. As Mr Khan himself has put it, the Prosecutor's mandate is not concerned with equivalence between alleged perpetrators – only victims. And that is precisely how the rule of law must work; would it really be better if courts were in the business of privileging the plight of one set of victims over another?
The Hamas trio, the warrant application claims, bear criminal responsibility for acts that include hostage taking, cruel treatment and inhumane acts. The laws of war apply even to non-state militant groups, and being a self-proclaimed resistance movement does not give licence to murder and terrorise innocents.
The charges against Mr Netanyahu and Mr Gallant, meanwhile, are significant because they call into question Israeli policy, not merely tactics. It is revealing that in his indictment of Israeli crimes, Mr Khan is seeking the arrest of politicians over military commanders. The notion that Israeli elected officials may have directed actions as grave as mass starvation and indiscriminate killing will damage the country’s standing in a way not seen before. This explains the furious reaction from an institutionally pro-Israel US leadership whose own international reputation has been deeply compromised by Washington’s confused and contradictory reaction to the months-long Gaza war.
It is also telling that Israeli objections thus far have been largely political, rather than legal, in nature. Israel has no shortage of military lawyers who might interrogate the substance of Mr Khan's allegations, but they have, it seems, been given a backseat to Mr Netanyahu's performative incredulity and grandstanding.
Despite the high-profile nature of Mr Khan’s request for international arrest warrants, there is no guarantee that a trial – let alone a conviction – will take place. For Israel’s leadership, a Trump White House in November could lead to the intensification of America’s political and legal cover for senior Israeli figures. Whatever the eventual results – and the ICC process could take years – one thing is for sure: we are witnessing a turning point not only in this conflict, but in the world's relationship with Israel, too.
