By Richard Ashby Wilson
On May 20th, the Chief Prosecutor of the International Criminal Court, Karim Khan, announced he is applying for arrest warrants for three leaders of Hamas (Al-Masri, Haniyeh, Sinwar), Israeli Prime Minister Netanyahu, and Defense Minister Gallant. Gallant and Netanyahu are charged with three war crimes, including starvation of civilians as a method of warfare, and four crimes against humanity including intentionally directing attacks against a civilian population and extermination. Hamas leaders Al-Masri, Haniyeh, Sinwar are charged with six war crimes, including murder and taking hostages, and five crimes against humanity, including rape, torture, and extermination.
The selection of political and military leaders with “command responsibility” rather than the material perpetrators is consistent with the ICC Statute which indicates that only the “most responsible” should be charged for mass crimes. That heads of state do not enjoy immunity for mass atrocities is now well-established in international law and was confirmed in the trials of Slobodan Milošević of Serbia, Augusto Pinochet of Chile, and Charles Taylor of Liberia.
The charges are cautiously and narrowly drawn, as there is prima facie evidence that Hamas operatives took hostages, and that Israeli forces indiscriminately attacked a civilian population. The indictments do not contain charges of genocide or incitement to genocide which are harder to prove because they require evidence of the specific intent to destroy a group in whole or in part. Of course, these could be added later.
The initial line of defense we can expect is that the defendants had no choice but to respond with violence to unreasonable provocation. This “necessity defense” is flawed for a number of reasons. First, criminal courts see it as an admission of guilt rather than a claim of innocence, as the possible mitigating circumstances of the crimes are only relevant at the sentencing stage. Second, international law has upheld a distinction for centuries between the reasons for going to war (ius ad bellum) and the conduct of war (ius in bello). Therefore, participants in a just war may still commit unjust and criminal acts, as the United States and Allies did in the Second World War when they firebombed civilian centers in Germany and Japan.
The most immediate consequence of the application for arrest warrants is that the charges will be reviewed by the Pre-Trial Chamber of the ICC which must decide in the next few weeks if there is sufficient evidence to proceed. If arrest warrants are issued, the defendants will be highly circumscribed in their travel because the 124 countries that are signatories to the ICC Statute are bound by treaty to arrest the defendants and extradite them to the ICC in The Hague. Norway was the first state party in Europe to declare publicly that they will comply with their statutory obligation to arrest and extradite the five defendants.
Then there are a number of possible but as yet unknowable consequences. The indictments may prompt the defendants, knowing they are under heightened legal scrutiny, to act in a more restrained manner in the conflict. On the downside, the charges may hamper peace negotiations and humanitarian relief efforts as they did when President Al-Bashir of Sudan was charged in 2006 by the ICC prosecutor with genocide in Darfur. Powerful allies of Israel such as the United States may seek to have the charges against Netanyahu and Gallant delayed by a year at the UN Security Council, although this resolution would need unanimity among the Security Council’s Permanent 5. Political and military leaders in countries that supplied weapons to Hamas or Israel, when it was foreseeable that they would be used as part of a widespread attack on a civilian population, could be indicted for aiding and abetting war crimes and crimes against humanity, a precedent established in 2012 in the Perisić case at the International Criminal Tribunal for the Former Yugoslavia.
Whatever happens next, the ICC indictments creates the possibility of some measure of accountability for the wanton slaughter of civilians in the Israel/Hamas conflict. Truth-telling is a form of accountability, and victims have an inalienable right to an investigation of the acts that harmed them and their relatives. Courts authorize truths, and if there is a trial, the record will constitute the official account of the 2023-24 conflict.
Accountability for political and military leaders who authorized mass killings is fundamental for building democratic and representative institutions after a conflict. Although this seems far away, acknowledging mass crimes and providing legal remedy is also the basis for any repair and reconciliation between the parties and peaceful co-existence in the future. And, as anthropologists of law and human rights have been saying for decades, the process is just as important as the outcome.
Richard Ashby Wilson is a professor of anthropology and law at the University of Connecticut School of Law