With devastating attacks this week on civilian encampments in Rafah, the war in Gaza continues, even as diplomatic pressure on Israel mounts and as the country’s leaders (and the leaders of Hamas) face international legal action.
Last week, ICC prosecutor Karim Khan filed applications for arrest warrants for five key leaders — Israel’s Prime Minister Benjamin Netanyahu, and its defense minister, Yoav Gallant; Hamas’s leader, Yahya Sinwar, its military commander Muhammad Deif, and its political chief, Ismail Haniyeh — in the ongoing war in Gaza, all on the charge of war crimes and crimes against humanity. Meanwhile, the International Court of Justice, the highest United Nations court, called on Israel to cease its military campaign in Rafah. And more European nations have moved to recognize Palestinian statehood, further isolating Israel diplomatically. Whatever behind-the-scenes efforts the U.S. is making (whether to pressure Israel to stand down or to make a regional security deal with Saudi Arabia) have so far come to naught, strong words aside.
To better understand the international legal perspective on the Gaza conflict and the prospects for accountability once the fighting is stopped, we reached out to David Kaye, professor of law at the University of California at Irvine, an expert on international criminal justice and the former U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.
In our conversation, Kaye explained the real-world implications of the warrants for accused Israeli and Hamas leaders, detangled the ICC and ICJ cases, and told us about how the international community might respond and what possible arrests and prosecutions would mean for the future of international criminal justice.
It’s a conversation you won’t want to miss, and you can read the full interview by visiting the link below. Kaye’s take on the warrants will give you new insight into the Gaza conflict, the workings of international criminal justice, and why there are still prospects for justice in Gaza, even given the bleakness of the current situation.
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[W]hat is the practical impact of these warrants being out there? Is the point for Israel to have to argue its position in court? Or do these make a symbolic point, giving the leaders in question a sort of pariah status like Putin’s — and since the U.S. has expressed support for the ICC warrant for Putin, does this force the U.S. into a position where it needs to decide one way or another what it’s position on the ICC actually is?
There is certainly a level of politics to think about here, but I’d start by emphasizing what I believe is how Karim Khan probably got to this point. A previous prosecutor, uncertain about the Court’s jurisdiction over crimes in Palestine and Israel and mindful of the extraordinarily thorny politics and law around the issues, requested guidance from the judges. In turn, the judges found that the Court enjoyed territorial jurisdiction in Palestine — that is, the West Bank and Gaza Strip – because of its position as a state for Rome Statute purposes.
Given this decision, and the requests by states and Israeli families to pursue prosecutions, Khan could not really avoid the question of whether there were crimes of sufficient gravity (a Rome Statute standard) in Palestine – or by Palestinians in Israel. In that sense, I think it’s important to understand the arrest warrant requests through this very specific legal lens. The point of the indictments (let’s just call them that) is not to force anyone to do anything except to appear in court and face justice – perhaps by claiming innocence, perhaps by being held accountable, but in any case addressing and responding to the legal claims the prosecutor is making.
That is quite a different thing from the overall purpose of the Rome Statute and the ICC’s very existence — and the impact it aims to achieve. In international law we call this the “object and purpose” of the treaty. And here I would say that the purpose is not to have Israel merely argue its case — for one thing, South Africa is already doing that in the separate context of the International Court of Justice, where Israel faces state responsibility charges of genocide (i.e., no single person is accused of anything there).
The object and purpose of the Rome Statute is to hold individuals accountable for the gravest violations of international law — war crimes, crimes against humanity, and genocide. (The crime of aggression has been added to the statute but that is not at issue here — nobody is charging Israel with an unjust or indefensible war of aggression.) That is all. Does that imply pariah status? Sure. Does it force the U.S. government to take a particular position? Yes, although the U.S. position is somewhat beside the point and gratuitous, since it has never joined the ICC and consistently, through some theological jujitsu, rejects the legal basis of the court’s exercise of jurisdiction to non-state parties. But those are, let’s say, collateral damage. The main event is accountability. The impact it has is up to governments, at the end of the day.
These warrants come out of the second ICC investigation into Israeli and Hamas officials; the first one dates back to the 2014 Gaza war. Can you talk about what happened with those proceedings? At the time there was pressure to call them off so they wouldn’t disrupt the G7 talks, and pushback from the U.S. and others.
I do not know enough about where these investigations stand to say something meaningful on that score. But I would say two things. First, Palestinian lawyers and civil society actors have been advocating for ICC action in the context of both Gaza and settlements for many years. The Palestinian Authority lodged its acceptance of ICC jurisdiction with the court many years ago for precisely these kinds of cases. The inaction of the court was extremely frustrating to them and they regularly expressed the view that a failure to trigger any kind of accountability process emboldened Israeli officials to believe that they would never face any accountability process,
Second, many observers believed that Khan was also going to seek arrest warrants against Israeli officials — particularly against the extremists in the current government, Itamar Ben-Gvir and Bezalel Smotrich — for their incitement and actions of extreme discrimination and harassment (i.e., persecution as a crime against humanity, if not other crimes) in the West Bank. He did not do that but I don’t think that’s off the table.
Over the years, the U.S. Government has regularly trotted out the argument that justice processes — ICJ cases, ICC allegations, even arguments over the legality of settlements — somehow interfere with a political process. Typically other states in the G7 have avoided these kinds of arguments, which frankly, I think are absurd, evidence-free arguments that serve to protect a peace process that does not exist and has not existed for about twenty years.
The United States has convinced itself that law and accountability are antithetical to peace and conflict resolution. It’s an extremely Washington-oriented view of the Middle East and of the global movement for international justice. And it’s extremely sad, if you ask me, since the United States was such a leader in the establishment of the main pre-ICC institutions of international justice — the Nuremberg and Tokyo Tribunals, and the war crimes tribunals for the former Yugoslavia and Rwanda in the 1990s, not to mention a few other “hybrid” tribunals in places like Cambodia and Sierra Leone.
How does this compare to the genocide case brought last year by South Africa against the state of Israel at the International Court of Justice? Is it potentially more significant, in its specificity and potential impact? The ICJ has no enforcement mechanism, but ICC signatories are theoretically committed to making arrests based on those warrants, correct?
The ICJ case, brought by South Africa at the end of 2023, specifically alleges that Israel has violated the Genocide Convention in the context of its war in Gaza. This is a case of state responsibility, in which, ultimately, South Africa will have to prove beyond a reasonable doubt that Israel is committing genocide or has committed genocide. It will not hold any individual accountable, since the ICJ lacks jurisdiction over individuals (it is only for inter-state disputes and requests for opinions by international institutions like the U.N.). It will take years to get to a decision on the merits, and when it does, it is unclear what the court would demand of Israel apart from declaring its responsibility. It remains a very big deal and could lead states and international organizations to take diplomatic steps against Israel, which is why Israel participated in the proceedings, and it is something that the Biden administration could have used to push Israel to change its behavior in Gaza.
By contrast, again, the ICC case is focused on specific individuals and the Rome Statute obligates its state parties to take measures (enforcement measures) to support it, especially arrest and transfer to ICC custody. Its impact may be similar to the ICJ case, in the sense of building an international case against Israel’s behavior in the occupied territories. But it does indeed have an extra bite, particularly if prosecutions actually materialize with individuals facing judges and prosecutors in The Hague. The detail, the human stories, the orders made or not made by senior officials, the failures deliberate and negligent – all of this would be much more fact-intensive than likely under the ICJ’s process.
In that sense, the ICC case looks not only to justice for today’s victims; it also creates a record of justice for history. We may not get there, but if Khan succeeds in getting warrants and at least some of the indictees are brought to The Hague, we may someday talk about how justice, for once, became a part of the Israel-Palestine lexicon.
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Photo by Abed Rahim Khatib/Anadolu via Getty Images
This post was originally published on The.Ink.