The ICC prosecutor has applied for warrants against Israeli and Hamas officials. What happens now?

Human rights attorney Alka Pradhan speaks about the historic significance of the ICC’s announcement, the notion of ‘moral equivalence’ and whether more charges could be coming.
Cover Image for The ICC prosecutor has applied for warrants against Israeli and Hamas officials. What happens now?

The International Criminal Court is seen in The Hague, Netherlands.

REUTERS/Eva Plevier

Karim Khan, the chief prosecutor of the International Criminal Court, announced his decision this week to publicly seek arrest warrants for both Hamas leaders and Israeli officials. 

Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh are accused of war crimes and crimes against humanity related to the Hamas attacks on Oct. 7, including the taking of more than 200 hostages. Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant are charged with crimes against humanity and war crimes related to Israel’s military offensive in Gaza, which includes the starvation of civilians. 

Khan’s announcement on May 20 drew scorching criticism from both Israel and the United States. Others in the international community, like France, backed the ICC’s decision. 

The application for warrants now goes to a panel of ICC judges who will determine whether to issue the warrants. Will those warrants be issued? Could additional Israeli officials or Hamas leadership be indicted? Analyst News spoke to Alka Pradhan, a human rights attorney and expert on international humanitarian law, about what the indictments could mean and what happens next. Pradhan is currently the human rights counsel at the Guantanamo Bay Military Commissions, representing one of the defendants in the capital case of United States v. Khalid Sheikh Mohammad. She is also associate counsel for the defense in Prosecutor v. Al Hassan at the International Criminal Court. 

Pradhan says the significance of Khan’s announcement cannot be overstated. 

“The ICC has had, in its 27 years of existence, a bit of a crisis of credibility in the fact that most of the defendants have been from sub-Saharan Africa. You see people from wealthier Western countries not having to submit to accountability mechanisms such as the ICC,” she says.  

“To see the current prosecutor Karim Khan decide on the basis of overwhelming evidence to request charges be filed against [Israeli officials who have] … historically had the support of Western countries is enormously significant because the prosecutor’s office was more than aware of how politically difficult this would be for the court.”

This interview has been edited for length and clarity. 

Alka Pradhan

Since Oct. 7, the ICC has faced criticism from those who argue that it should have acted sooner. Why have the applications for warrants been issued now, more than seven months after the current war in Gaza began? 

As a human rights attorney, I share the frustration with a lot of people watching the carnage take place and being frustrated that the legal mechanisms take some time to get underway. But at the same time, I have some sympathy for the prosecutor’s office because what the prosecutor has to do when initiating an investigation sua sponte, on their own, when it’s not referred by the Security Council, is really undertake a very rigorous investigation and be able to collect information not just from one party or the other party, but as much as possible. That’s been rendered more difficult than usual, given the state of affairs on the ground and the fact that access to Gaza has been limited. It has been extraordinarily difficult to just to make sure that they’re collecting evidence from unbiased sources. They’re double, triple checking it in order to be able to support potential indictments. 

The other part of the calculation that has probably taken some time is figuring out how to frame this in a way that will not be immediately rejected politically because we have to be honest about the limitations of the International Criminal Court. It is dependent on funds from member states. It is dependent in some part, even if it’s not a member state, on support from the United States, or at least not sanctions. And so, for it to continue its work and be able to be effective and be as impartial as possible, it has to be able to present its indictments in a way that cannot be immediately dismissed by people who understand the law. 

And so it has taken a long time. We have all seen what’s happened in that time, and it’s an absolute tragedy. But I think that calculation probably played a part in making sure to get a panel of experts to evaluate the evidence in an unbiased way as possible, making sure that the prosecutor had as much support politically and legally as possible before coming out with indictments. 

You’re referring to an independent panel of experts in international law that was convened by the ICC prosecutor in support of his investigation. That panel submitted a report indicating that there are “reasonable grounds to believe” that the people named in the warrants have committed crimes within the jurisdiction of the court. Was this standard procedure? Why did the prosecutor choose to take this step? 

It is not required, and it has not always been done before charges are requested from the pre-trial chamber. For this particular situation, I think it was probably necessary and is very, very important. I don’t think it’s something that anyone necessarily expected. Very few people knew that that panel had been convened. The prosecutor felt it was necessary, and I think that was a good decision. 

The panel is both relatively diverse and also [features] a diversity of experience in international law of these experts. It includes practicing Jews. It includes people who have been on various courts for a long time, people who have led these trials and international tribunals, who understand how the crimes need to be presented and supported. Giving them access to the evidence, which remains confidential of course, and allowing them to present their report themselves, was very powerful. The fact that it was issued unanimously by this sort of breadth of international legal experts — for all of us who specialize in international law and international criminal law in particular, it was very reassuring that in fact it’s not just something that’s coming from Karim Khan or his office, but it is something that other specialists who have litigated and judged these kinds of cases believe to be supported by the facts.

Everything before the International Criminal Court is political. Just like the U.N., just like every international body, you cannot remove politics from these kinds of things. And so it is very helpful to have that outside discussion by legal experts.

There is no equivalence being drawn by the prosecutor between the actions of the government of Israel and the actions of Hamas. The standard is between the actions of the government of Israel and what the law is, and the actions of Hamas leadership and what the law is.

The warrants haven’t been issued yet. How long will the process take for them to be issued, and is there a chance they could be rejected? 

Now the request goes to the pre-trial chamber of judges, a panel of judges who will look at the evidence and everything underlying the request. It can take anywhere from weeks to months. I think the rigor with which these indictments have been pursued makes it unlikely that the charges will not be issued. I think it is very likely that we will see indictments coming out of this.

Karim Khan said in his announcement that he would not hesitate to submit further applications for warrants of arrest. Does that mean that the investigation is ongoing and that more could be coming?

The investigation really never ends, until everything’s said and done until you get to trial. It is right and proper that the investigation should continue, particularly in a situation of armed conflict where the conflict is continuing. People are continuing to be killed on the ground. There are still debates over what exactly is happening, what exactly the Israeli government is doing where the leaders of Hamas are. All of these are still open questions. And so, as long as the conflict continues, certainly, the investigation will continue and information will be gathered. I don’t know if the prosecutor has specific ideas in mind for further indictments. But I think it’s very possible that further indictments could come down against leadership on both sides.

If and when the warrants are issued, what are the practical implications, both for Hamas leaders and Israeli leaders?

We saw a little bit of this in the early 2000s, with certain member states in Europe issuing universal jurisdiction, not indictments per se, but starting investigations into for example, the CIA’s rendition program and torture program. And you saw people like Donald Rumsfeld and President George W. Bush really being unable to attend certain meetings, attend certain conferences in different parts of the world. There was an anecdote about Secretary Rumsfeld having to leave France in a hurry after a court in France decided to investigate. There was a situation in Germany where there was an active investigation for a certain period of time into the torture program. High U.S. government officials were not traveling to Germany. 

So it’s not accountability in the way we think of accountability, but it is a measure. It is a step towards, ‘This is not OK. You’re not going to have all this freedom of movement when you are wanted for potentially committing these kinds of crimes.’ So it can be quite a deterrent when used effectively.

So if the warrants are issued and, for example, if Benjamin Netanyahu were to travel to a member state of the ICC, they would be required to enforce those warrants and arrest him?

Yes, that would be a requirement. Now they could refuse to do so. And that could carry its own effects. But yes, under this court statute, they would be required to take custody of him and transfer him to the International Criminal Court if those warrants were issued.  

What impact do you think this announcement will have on the current conflict and what’s happening on the ground? 

Obviously, the prosecutor’s office is there to pursue justice and, ultimately, accountability. Many of us in the human rights arena hope it will bring some reflection, some pause on the parts of the parties who are engaging in these crimes, and also in the states that have been supportive. I think the hope on the part of a lot of human rights experts is this will, at the very least, bring about more influence from allied states to end the conflict, bring about a ceasefire so that we can pursue accountability mechanisms without an ongoing conflict and continued loss of life.

The prosecutor brought charges against three top Hamas leaders, as well as Israeli officials Benjamin Netanyahu and Yoav Gallant. The response, from critics of the ICC, has been that the prosecutor is creating some kind of moral equivalence between Israel and Hamas. But aren’t the charges based on individual criminal conduct? 

There’s always going to be political spin by people who have political interests in this. It’s important to remember that, from a legal perspective, the standard is not the actions of the other party. There is no equivalence being drawn by the prosecutor between the actions of the government of Israel and the actions of Hamas, or the Palestinian Authority or any other authority in Gaza. 

The standard is between the actions of the government of Israel and what the law is, and the actions of Hamas leadership, and what the law is. That is the standard. We’re not comparing two parties to each other. The request for indictments was issued on the same day. But that is not to say that there is a direct one-to-one comparison between one or the other. They’re simply not being compared to each other. They’re being compared to what they should be doing in an armed conflict and where they are falling short.

The United States has argued that the ICC does not have jurisdiction in this case, because Israel is not a member state of the ICC. But Russia is also not a member state, and the United States supported the ICC’s indictment of Vladimir Putin for his alleged crimes in Ukraine. How does the ICC have jurisdiction in this case? 

The Russian Federation is not a state party to the ICC. But the crimes being allegedly committed were on the territory of a state party — the Ukraine — and the United States was very happy to support those indictments. Under the statute, it is very black and white. [The crimes were] committed on the territory of a state party and therefore the International Criminal Court has the ability to exercise jurisdiction, if they so choose pursuant to an investigation, which Karim Khan did. 

This is a very similar situation. The ICC has ruled that the court has jurisdiction over the state of Palestine for the purposes of any investigations into crimes. The fact that the ICC has found that it would have jurisdiction in Palestine should be non-controversial. Where controversy comes in is that issue of other country’s nationals committing crimes on that territory again. Here, of course, you have nationals from the State of Israel allegedly committing crimes on the territory of Palestine. But there is really no question that the ICC has jurisdiction, both over the territory of Palestine, which has accepted ICC jurisdiction, and over any crimes committed by any nationals in that territory.

There has been a lot of debate over the legality of Israel’s actions in Gaza. The ICC has focused its allegations against Israeli officials on the use of starvation as a weapon of war. Why has that been the major focus, and can we expect it to expand?

Part of the issue here is that this is an ongoing armed conflict. Other charges could be added at some point. The prosecutor has, I think, rightly focused on what we have sufficient evidence for at this moment. 

People talk about genocide. There is a great deal of legal debate over whether this is in fact a genocide. And I think that that debate will and should continue. But there is no real hierarchy among these high crimes in international law. It’s not as if, because war crimes and crimes against humanity have been charged and not genocide, that the acts are somehow better than if it were a genocide. 

There is no hierarchy among these high crimes in international law. It’s not as if, because war crimes and crimes against humanity have been charged and not genocide, that the acts are somehow better than if it were a genocide.

War crimes, crimes against humanity, and genocide are all among the highest international crimes. It is not better to commit the war crime of starvation than it is of genocide. We use that term and it is so charged, rightfully so. But it is not that these other crimes are lesser than. It’s not letting people off by charging war crimes and crimes against humanity rather than genocide at this time. 

I want people to keep that in mind because it allows for war crimes to be minimized in comparison to a crime of genocide. And that is something that international legal experts really don’t want, because we want people to understand that war crimes are not small. They have enormous civilian impact, sometimes even more than a genocide might. Genocide is a horrific crime. It may have intent, but it may not be on such a large scale as war crimes and crimes against humanity. 

What have been charged are war crimes and crimes against humanity and including, as you mentioned, starvation, which is an extraordinarily serious crime during an armed conflict. We’re really talking about the collective punishment of the civilian population, by parties that have the ability to mitigate it. It’s that intentional infliction of punishment on the civilian population who are innocent, they are not participating in hostilities, and an enormous proportion of them are children. And so we have starvation. But we also have an interesting statement by the panel of experts, referring to the prosecutor’s statement that other alleged crimes, including the large-scale bombing campaign in Gaza, are actively being investigated. 

And that speaks to, again, the fact that this is an ongoing armed conflict. We of course have seen evidence that there is indiscriminate bombing taking place. President Biden made a statement in that regard, about the indiscriminate nature of the bombing taking place. 

That is something that we should be careful about charging during an ongoing armed conflict because we are still continuing to collect evidence about it. I don’t particularly think [the prosecutor is] being conservative, but I think that they’re being careful, rightfully so, about what can be charged now, and leaving the possibility open for perhaps more charges down the road once intent and more evidence can be ascertained.

Ismat Mangla is the managing editor at Analyst News.