Smoke and mirrors: Do Karim Khan and the ICC's arrest warrants favour Israel by design?

Those familiar with Karim Khan's track record as International Criminal Court (ICC) prosecutor know that the arrest warrants for war crimes in Gaza are a dramatic u-turn of past form.

Since Khan took office in the summer of 2021, he has been largely inactive in investigating Israeli crimes in Palestine, stalling proceedings, and in general showing a marked disinterest in the victims of Israel's occupation. 

This evasive apathy, his subservience towards the US, and his bias towards Israel have earned him the reputation of being closer to the tyrants and criminals that he is prosecuting than to the victims he is supposed to protect. So why the shift, why now?

I believe that the arrest warrants against Israel's leaders are undoubtedly a political one, and one that Karim Khan would certainly not have authored himself, a realisation hinted at by Israel's Channel 12 after news broke that arrest warrants could be issued against Netanyahu and Gallant. 

The broadcaster cited prominent Israeli journalist Amit Segal who said that his sources with links to the ICC had told him that Khan wouldn't have dared to have taken this step without a green light from Washington.

It should be noted that the US supported Karim Khan's candidacy for the top job, and the British prosecutor has repaid the favour several times by halting the investigation into crimes committed by US soldiers in Afghanistan and complying with Washington's orders regarding Ukraine — including by obtaining an arrest warrant for Russian President Vladimir Putin in record time.

Khan has also repeatedly met with decision-makers in Washington, even hosting a congressional delegation from the US in the Hague to discuss his approach in Ukraine and other issues. How odd given that the US isn't party to the ICC and has always been hostile to it. 

For the US, ICC arrest warrants kill several birds with one stone

Khan's sudden move, while seemingly focused on crimes underway in occupied Palestine, seems to have achieved more than one goal. Top of which is Washington's wish to curb Netanyahu's and Gallant's escalation in Gaza — and their open defiance of Biden — who opposed a large-scale ground invasion of Rafah, preferring remotely conducted bombing and carnage – extermination "light", so to speak.

This approach, in Biden's head, would less likely jeopardise his chance of winning the coming elections, as well as not risk exposing him personally to prosecution for complicity in genocide.

Another reason Washington is angry with Netanyahu is his recent attempt to involve the Biden administration in a direct war with Iran, which Washington refused as it wishes to keep focusing on its foreign policy priorities: China and Russia. Not only that, Netanyahu is hindering a deal with Saudi Arabia due to his rejection of both a ceasefire and a two-state solution.

Netanyahu is now a liability for Biden's government which has instrumentalised the ICC as a means to exert pressure to force him to change his policies.

If Netanyahu doesn't conform, Biden's strategy will further sideline him politically, opening up space for another, more pliable leadership in Washington's view like General Benny Gantz — whose criminality is no less than others in the current genocidal government. 

We will see how Netanyahu and Gallant will respond to the pressure exerted by the ICC in the coming period after international arrest warrants against them are issued — it's unlikely the Pre-Trial Chamber I of the ICC will reject the request.

Now that two of the most prominent sponsors of Israel's genocide are on the verge of becoming wanted by international justice, we must admit the request for arrest warrants was a masterstroke; it kills several birds with one stone.

In addition to trying to restrain Netanyahu and those around him, the warrants seek to save the reputation of the ICC itself.

The court has concentrated since its establishment in 2002 on prosecuting Africans, Arabs, Russians, and other nationalities, while keenly ensuring Western states are kept away from efforts to hold them accountable, for instance when it refused to investigate crimes by British soldiers in Iraq.

Today, the request for arrest warrants for Israeli leaders is considered the first such step ever taken against such an important ally of the West. This has allowed Khan to expound to the world the independence and impartiality of an international justice system which treats everyone equally.

For some, he's even become a hero of the Palestinian cause, as they see this act as having smashed Israel's exceptionalism, although credit for this should go to the legal case raised by South Africa against Israel at the International Court of Justice (ICJ).

Karim Khan's Trojan Horse

It's also likely the ICC's move will encourage the ICJ to resolve the most contentious issue between the court's lawyers — that an interim order requiring Israel to halt its military operation and withdraw from Gaza be issued.

It may also cause Israel's international isolation to deepen, and bolster legal cases being raised by civil organisations in the US, Germany and the UK which seek to ban weapons sales to Israel.

However, a quick review of what's missing from the arrest warrant highlights the venom Khan has concealed in all these positives which could cause serious medium and long-term damage to the entire issue. This can be summarised in a few points.

Firstly, the crime of committing "genocide" is absent from the list of charges directed at the Israeli leaders, and has been switched to "extermination" – a charge also levelled at the Hamas figures. Thus, full equivalence has been drawn between the crimes attributed to senior criminals of the occupying state and members of a resistance movement.

By using this deft sleight of hand, Khan seeks to rescue Netanyahu and Gallant from the accusation of genocide — the crime of crimes — in Gaza.

According to the Rome Statute, "extermination" includes the "intentional infliction of conditions of life […] the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population" and is committed in the framework of a widescale or systematic attack targeting civilians.

The fine line distinguishing "extermination" from "genocide", was defined in a former ICC ruling against Serbian general Radislav Krstic in 2001, against whom the charge of genocide in Srebrenica was proven.

The court argued that the act of "extermination" could be distinguished from "genocide" because it wasn't committed based on national, ethnic, racial or religious affiliation, and did not require the presence of any special intent to destroy the group, in whole or in part.

Khan is doing a huge service to Israel and its allies by removing the genocide charge from the Israeli leaders. Moreover, by adopting the charge of "extermination" rather than "genocide", he could influence those ICJ judges who are seeking a way to avoid issuing a ruling of genocide against Israel in South Africa's case, which has been causing Tel Aviv and its allies sleepless nights.

Another danger in Khan's approach is that he is not making it an extension to the investigation his predecessor Fatou Bensouda launched in the spring of 2021, which was placed within the context of Israel's occupation of Palestinian land; investigating crimes linked to the nature of the settler regime, including the two crimes of settlement, and apartheid — both part of Israeli state policy.

Khan's approach, however, will not require any investigation on the ground, and he will not be building on Bensouda's investigation.

The British Ahmadi prosecutor will strive to keep the case separate from its wider context of occupation, to deprive the Palestinian leaders of the right to armed resistance — a right endorsed by many UN General Assembly resolutions, the Hague Conventions, and the Third Geneva Convention.

However, the most treacherous aspect concealed in the case is the potential Khan's approach opens for the ICC to withdraw its warrants from the Israeli leaders if Israel's authorities agree to prosecute Netanyahu and Gallant in their courts for the same charges.

This is because the Rome Statute gives secondary jurisdiction to the ICC after national courts, and can only act if the relevant states are unwilling or unable to prosecute the crimes within their jurisdiction, according to the "principle of complementarity".

Tellingly, when US Secretary of State Antony Blinken criticised the ICC, accusing it of interfering in the affairs of a country with an "independent, legitimate, democratic judicial system", the ICC prosecutor's office stated Khan had not received information from Israel proving genuine legal measures were underway to investigate the cited crimes.

This was a hint that Khan only awaits a signal from Tel Aviv to withdraw the charges.

While the chance that the mechanisms for international justice provided by the Rome Statute could be circumvented like this for Israel, the Palestinians face a much worse scenario: there is no chance the complementarity principle will be applied in the case of the Hamas leaders, for whom orders for arrests could be issued.

So, after the Palestinians took the step, agreed to by the Hamas leadership, to resort to the ICC to achieve justice, today they find themselves the accused in the dock — in a case where Khan has drawn total equivalence between powerful, senior-ranking criminals — the leaders of a nuclear-armed occupying state and a popular resistance movement. Between the killing of hundreds of Israelis, and tens of thousands of Palestinians.

Furthermore, thanks to his pro-Israel bias, the number of Palestinians accused outnumbers the Israelis. Moreover, Khan has levelled eight charges at Sinwar, Deif and Haniyeh, in contrast with only seven against Netanyahu and Gallant. Five accusations of crimes against humanity have been made against Hamas, whereas only three are against the Israeli side.

Indeed, placing Netanyahu and Gallant on the list of major criminals of the twenty-first century is an event worthy of appreciation, despite its belatedness. However, it should not whitewash Khan and his toxic brand of justice.

Dr. Aicha el Basri is a Moroccan author and journalist. She is a former spokeswoman for the African Union and the United Nations Mission in Darfur, and a recipient of the 2015 American Ridenhour Prize for Truth-Telling.

This is an edited and abridged translation from our Arabic edition. To read the original article click here.

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff, or the author's employer.