Karim Khan’s arrest warrants are undoubtedly historic.
They signal an end to decades of entrenched Israeli exceptionalism and impunity on the world stage, where Israel’s powerful Western allies have disabled any attempt to hold Tel Aviv to the same legal and political standard as other states.
Israeli exceptionalism has paralysed international mechanisms, including the United Nations Security Council, and maintained that the destiny of the Palestinians is beyond reach.
Now, with this taboo broken, Palestinians and human rights defenders can celebrate the prospect of long-overdue accountability for some Israeli crimes and long-awaited justice for its victims.
Objectively, however, it has taken Khan a genocide and his entire term in office to come to this moment, which the British prosecutor did his best to avoid. Khan inherited an open investigation into the situation in Palestine when he was sworn in as ICC prosecutor in June 2021.
In contrast to his bullish approach on other cases and the speed with which he got arrest warrants for Russia’s Vladimir Putin, Khan was sluggish on Palestine until the unfolding genocide in Gaza made his silence untenable.
However, Karim Khan’s unconventional and highly publicised announcement is noteworthy. At a minimum, he put the Pre-Trial Chamber Judges in the spotlight, a place they usually stay away from.
Karim Khan’s selective memory
Without minimising the historical significance of the moment, it’s important to scrutinise the charges for what they did not include.
To do so, it’s important to remember that when Israel began its war on Gaza in October, Karim Khan and his team had already been investigating possible war crimes and crimes against humanity in the occupied West Bank, including East Jerusalem, and the Gaza Strip for over two years.
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Yet, Khan decided to unilaterally narrow the focus of his efforts to crimes that occurred since October 2023.
This was a conscious and politicised choice as it relieved the prosecutor of having to include settlements, apartheid, torture, forcible transfer and other crimes within his mandate to the list of crimes that Netanyahu, Gallant, and other Israeli officials could be indicted for.
Several UN agencies and independent UN commissions of inquiry have thoroughly documented and investigated those crimes, providing Karim Khan with sufficient evidence to proceed with criminal prosecution. Although Khan asserted that other changes could be forthcoming, it is unclear whether his lens has a wider scope than the unfolding genocide in Gaza.
“The unhinged tirades of some US lawmakers and others in response to the ICC charges reveal that this sentiment is the undertone of this duplicitous indignation”
To further defend his choices, the ICC prosecutor enlisted the advice of a panel of distinguished international law experts, including a former ICC judge and former president of the International Criminal Tribunal for Yugoslavia, who also advised the Israeli Foreign Ministry and the US State Department.
This panel also published an Op-Ed and a report expressing unanimous support for the list of charges just as Karim Khan announced his request for arrest warrants. In addition to notable public lobbying, the panel was conspicuously devoid of any international law expert from the Global South.
Karim Khan’s list of changes did not include the crime of genocide. Ironically though, his request for arrest warrants will undoubtedly weigh heavily on the judges of the International Court of Justice, who are currently considering an urgent request from South Africa for additional preventive measures in the case against Israel, and who will preside over the genocide case against Israel in the coming months.
ICC: An impartial and independent court?
Ideally, Karim Khan and ICC staff, including judges, must operate independently and without pressure or intimidation from states or other actors. But the prosecutor is astutely aware of the political pressures and serious threats against him and the court.
He’s aware that in 2020 the Trump administration’s sanctions against his predecessor and other staff had a devastating impact.
To his credit, Khan disclosed to CNN’s Christiane Amanpour that a senior Western leader told him “This court is built for Africa and thugs like Putin.” The unhinged tirades of some US lawmakers and others in response to the ICC charges reveal that this objectionable sentiment is the undertone of this duplicitous indignation.
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As Karim Khan navigates these tumultuous political waters and makes history, he is acutely aware that his actions will be scrutinised and judged by fellow experts and states, who fear that Western double standards threaten to unravel the entire international system, including his court.
He must prove that his announcement is part of a serious pursuit of justice and accountability. The stakes are too high. The risks are monumental. Political theatrics will not cut it.
Nour Odeh is a political analyst and public diplomacy consultant. An award-winning journalist, Odeh was also Palestine’s first female government spokesperson
