Thread by @Kjell_Anderson

A 🧵with some initial thoughts on the big news that #ICC Prosecutor Karim Khan is seeking arrest warrants for 5 individuals in relation to the #Palestine situation. This includes both Hamas & Israeli leaders. #Gaza #Israel #Netanyahu
Here is his statement: icc-cpi.int/news/statement…

The 5 individuals:
- Yahya Sinwar (Head of Hamas in Gaza)
- Mohammed Diab Ibrahim Al-Masri (Commander-in-Chief, Al-Qassam Brigades)
- Ismail Haniyeh (Head of Hamas Political Bureau)
- Benjamin Netanyahu (Prime Minister of Israel)
- Yoav Gallant (Minister of Defence of Israel)

This is an application for an arrest warrant, not the warrant itself, which can only be issued by the Court (Pre-Trial Chamber). The standard is whether there is a "reasonable grounds to believe" that the person named has "committed a crime within the jurisdiction of the court."

This standard will very likely be met, although it is likely that the Court will knock out some of the charges. The Prosecutor can also amend the charges, and they can charge other individuals not yet named (through the same process).

Unlike the Ukraine situation, the Prosecutor has chosen to publicize this request, rather than waiting for the warrants to be approved - a process that could take months.

The Prosecutor is likely hoping that his request will have an immediate effect. He is also anticipating inevitable blowback, by doing immediate press, as well as taking the unusual step of assembling a panel of outside experts to affirm his decision.

https://x.com/cnnipr/status/1792508639640502587

The panel includes Adrian Fulford, Theodor Meron, Amal Clooney, Danny Friedman, Helena Kennedy, Elizabeth Wilmshurst, Marko Milanovic + Sandesh Sivakumaran. They have published an editorial to coincide with the request + a report
ft.com/content/aa2089…
icc-cpi.int/sites/default/…

The panel has been reviewing evidence for months, and they emphasize that the reasons for the conflict must be separated from the conduct of hostilities. This is the first time the OTP has used such a panel and it is being criticized by some ICC insiders.

https://x.com/kiphale/status/1792519556931494355

The panel was presumably convened to head off any critique that the Prosecutor was acting capriciously or in a partial manner. The Court will ultimately decide if the charges have merit.

Khan is likely to face harsh critique from Israel and its allies in the coming days, though the Times of Israel once reported that Khan was "Israel's preferred candidate."

https://x.com/YousefMunayyer/status/1792528818751586735

In his framing of the request, Khan has repeatedly mentioned the charges against Hamas leaders first, including in his press release. This could be coincidental, but I believe there is a concerted effort to present the court as balanced.

Of course, there is no obligation that the court be balanced (in the sense of charging all "sides" equally), particularly considering that it is focused on individuals and not groups. Nonetheless, the Prosecutor must consider optics.

There is also strong evidence that both Hamas and Israel have committed international crimes. Israel is already framing this as a "false equivalency", but there is no implicit or explicit argument about equivalency in the charges - they deal with separate criminal conduct.

There are also claims that charges against Israeli leaders are not admissible due to complementarity, but this would mean that Israel was investigating the same suspects for substantially the same conduct, i.e. Israel would need to be investigating #Netanyahu for war crimes.

Now to the charges themselves... For the Hamas leaders, the charges are focused on the October 7 atrocities, and include rape as war crimes and crimes against humanity, torture, hostage-taking, etc.

The acts are charged as both crimes against humanity and war crimes because they were part of a widespread or systematic attack against a civilian population and they also occurred in the context of an armed conflict.

That armed conflict is both international (Israel and Palestine) and non-international (Israel and Hamas). Lots of legal complexities there that I won't get into here.

The charges and the statement emphasize the brutality of Hamas' "unconscionable" attack, as well as the continuing cruelty towards the hostages and expresses sympathy towards the victims' families.

Evidence for these crimes comes from "CCTV footage, authenticated audio, photo and video material, statements by Hamas members including the alleged perpetrators named above, and expert evidence"

The charges against Israeli leaders are focused on the use of starvation as a method of warfare against Palestinian civilians, and the targeting of civilians.

Genocide is not included (yet). I am not surprised by this conservatism, given the challenge of establishing genocidal intent. The crime against humanity of persecution is included, which is another crime targeting a group (Palestinians), yet not requiring the intent to destroy.

The Prosecutor calls the campaign against #Gaza a "total siege" and cites the targeting and killing of aid workers.

Gallant and Netanyahu are being charged as co-perpetrators, as well as under command responsibility. This means they are responsible for the criminal actions of those under them in the chain of command.

Khan also says: "As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come." #Israel #Gaza #ICC

The statement anticipates critique, emphasizing the independence of the court, that only the judges can issue the arrest warrants, and that his office will be undeterred from attempts to intimidate.

The political impact of the charges will be significant. Israel is isolated and this war has substantially damaged its reputation. Arms sales to Israel will be unviable for states parties to the Arms Trade Treaty (like Canada). I would bet Netanyahu's days as PM are numbered.

It will also be interesting to see the effect of the potential charges on the #ICJ case. The ICJ is dealing with states, and the ICC with individuals. There are quite different processes at play. Yet, evidence produced by the #ICC would also be influential in ICJ determinations.

Beyond the charging of #Netanyahu, many will note the absence of a #genocide charge. He/Gallant are charged, however, with the crime against humanity of extermination, which includes as a required element "the mass killing of members of a civilian population". #ICC #Gaza

This means that the Prosecutor of the International Criminal Court is alleging that #Israel is engaged in the mass killing of Palestinian civilians. #ICC #Gaza

Very strong reactions coming from the govt. of Israel, with the foreign minister - Israel Katz - calling the request for arrest warrants (including those responsible for October 7) "an unrestrained frontal assault on the victims of October 7th and our 128 hostages in Gaza". 😕

If the #ICC approves the Prosecutor's request and approves the arrest warrants then 124 states will be obligated to arrest and surrender the individuals named, including #Netanyahu, should they enter their territory. (the countries in green below)

The President of Israel - Isaac Herzog - calls the request "one-sided" even though the Prosecutor is requesting the arrest of 3 senior Hamas leaders for the October 7 crimes.