The International Criminal Court (ICC)

‘This one-sided move represents a unilateral political step that emboldens terrorists around the world.’

By Pesach Benson, TPS

Israeli officials responded with anger to International Criminal Court Chief Prosecutor Karim Khan’s announcement that he will seek arrest warrants for both Hamas and Israeli leaders for war crimes in Gaza on Monday. And one legal expert who discussed the situation with The Press Service of Israel faulted Khan for drawing a moral equivalence between Israel and Hamas.

“Taken in bad faith, this one-sided move represents a unilateral political step that emboldens terrorists around the world, and violates all the basic rules of the court according to the principle of complementarity and other legal norms,” said Israeli President Isaac Herzog on X, formerly known as Twitter.

“Hamas’ leaders are oppressive dictators guilty of launching mass murder, mass rape, and mass kidnappings of men, women, children and babies. Any attempt to draw parallels between these atrocious terrorists and a democratically elected government of Israel – working to fulfill its duty to defend and protect its citizens entirely in adherence to the principles of international law – is outrageous and cannot be accepted by anyone.”

Foreign Minister Israel Katz said his ministry will be “fighting against the decision intended primarily to shackle Israel’s hands and prevent it from exercising its right to self-defense.”

Said Katz, “While the killers and rapists of Hamas committed crimes against humanity against our brothers and sisters, the Prosecutor mentions in the same breath the Prime Minister and the Defense Minister of Israel with the filthy Nazi monsters of Hamas, a disgrace for history to remember forever.”

A statement posted on the ICC website on Monday said there are “reasonable grounds to believe” that Netanyahu and Defense Minister Yoav Gallant “bear criminal responsibility” for war crimes and crimes against humanity, including starvation as a method of warfare, willfully causing great suffering, murder, and intentionally attacking civilians.

The statement also specified warrants for Hamas’s Gaza strongman Yahya Sinwar, overall commander Mohammed Deif, and its politburo chief Ismail Haniyeh.

There were “reasonable grounds to believe” the three are responsible for murder, taking hostages, rape and other acts of sexual violence, torture and, “extermination as a crime against humanity.”

Legal expert Maurice Hirsch told TPS-IL he expects the ICC to “rubber stamp” Khan’s request for warrants.

“I fear that that won’t take a long time. I haven’t seen a timeline set by the judges. Unfortunately, many of the judges on the court are more radical than the prosecutor,” said Hirsch, who is director of the Initiative for Palestinian Authority Accountability and Reform in the Jerusalem Center for Public Affairs, a Jerusalem-based research institute.

“If you remember the case of the Mavi Marmara, the previous prosecutor was fundamentally anti-Israel and she wanted to close the case. It was the judges who forced her over and over again to reconsider” in 2019, Hirsch said.

He was referring to then-Chief Prosecutor Fatou Bensouda refusing to open an investigation into Israel’s raid on the Mavi Marmara, a Turkish ship that was part of a flotilla trying to break the Israeli naval blockade of Gaza. Ten Turkish members of the radical pro-Hamas IHH organization were killed in violent clashes with Israeli commandos.

Bensouda told the judges she didn’t believe the case was serious enough to call for an ICC probe.

Said Hirsch, “I don’t think the judges in this case will be of any use. They’re going to rubber stamp the request of the prosecutor. And so we will find ourselves with international arrest warrants put out against Netanyahu and Gallant.

It’s a situation we should never have got to.”

He described as “garbage” the actual charges against Netanyahu and Gallant.

“The revamped statistics were put out by Hamas and megaphoned by the UN. There are less than 25,000 people killed, of whom 14,000 plus are terrorists.

So this is clearly the most cautious urban warfare that has ever been waged,” Hirsch told TPS-IL. “Similarly, this whole claim of starving the population – where did that even come from? The exorbitant amount of international humanitarian aid that’s been flowing into Gaza, the bakeries that are open in Gaza and providing food all of the time. This is literally a perversion of reality.”

Asked about the timing of Khan’s announcement, Hirsch told TPS-IL, “I think Khan is trying to ensure that there is maximum pressure against Netanyahu, against Israel to go into Rafah.

I think that this whole waiting period that we’ve been experiencing with the Americans … was just buying time to cook up these charges and to now use them before we go into Rafah will be an even more pronounced danger.

This will prevent Netanyahu and Gallant from acting in the full level of self-protection.”

The legal effort is being spearheaded by the Palestinian Authority, and Hirsch said Israel is helping fund it.

“Even though this is a core breach of the Oslo Accords, Israel has continued to provide the Palestinian Authority with all of the tax money that we collect on their behalf.

Out of every hundred shekels that the PA spends to forward this case in the ICC, they get 65 shekels from Israel.”

He suggested that Israel make an ultimatum to the Palestinian Authority — withdraw from the ICC, or “not receive another penny from Israel.”

Said Hirsch, “It’s a political court that recognizes a state that doesn’t exist for the purpose of vilifying the Jews.”

At least 1,200 people were killed, and 252 Israelis and foreigners were taken hostage in Hamas’s attacks on Israeli communities near the Gaza border on October 7. Of the 128 remaining hostages, some 40 are believed dead.