Israel in the dock

Now it’s official

As I wrote at the time, I was surprised to hear three weeks ago that Karim Khan KC, prosecutor of the International Criminal Court (ICC), was reportedly seeking arrest warrants for Israeli leaders.

One reason for my scepticism was based, as I wrote, on the court’s foundational principle:

Known as the principle of complementarity, it means that the ICC steps in only when national courts are unable or unwilling to act. If the arrest warrants are supposed to relate to the current military operation in Gaza, it is far too early to say whether the Israeli authorities have done all they can to investigate and respond to whatever allegations are supposed to have attracted the prosecutor’s interest.

There was another reason for thinking that arrest warrants were implausible: the prosecutor surely wouldn’t want to be seen as taking sides in the current conflict.

But now he has. Khan would no doubt argue that, in addition to seeking the arrest of Israel’s two senior political leaders, he also wants to prosecute three leading figures in Hamas who were responsible for invading Israel on 7 October last year and murdering its citizens. But there can be no moral equivalence between the leaders of a terrorist group and accountable ministers of a democratic state. To treat them in the same way is to give hope to terrorist groups around the world.

Khan’s experts

What we did not know until yesterday is that Khan had appointed a panel of international legal experts to support his investigation. Panel members were asked whether they thought there were “reasonable grounds to believe that the persons named in the warrants have committed crimes within the jurisdiction of the court”.

For this purpose they were “asked to assess objectively the material provided to them by the prosecutor and to advise the prosecutor whether it meets the relevant legal test”. They reviewed “the applications for arrest warrants, as well as underlying evidence, including witness statements, expert evidence and authenticated videos and photographs obtained by investigators”.

But, as lawyers sitting thousands of miles away from Gaza, they have no reliable means of testing the evidence handed to them by the prosecutor’s office. How can they know how much of it comes ultimately from Hamas itself?

Take the allegation that “Benjamin Netanyahu, the prime minister of Israel, and Yoav Gallant, the Israeli minister of defence… committed the war crime of ‘intentionally using starvation of civilians as a method of warfare’.”

The panel’s assessment is that “there are reasonable grounds to believe that Netanyahu and Gallant are responsible for the killing of civilians who died as a result of starvation, either because the suspects meant these deaths to happen or because they were aware that deaths would occur in the ordinary course of events as a result of their methods of warfare”.

Where, though, is the evidence that Gazans died of starvation? Where is the evidence that were unable to find food of any kind during the weeks it takes for life to become extinct? How can it be said that Hamas bore no responsibility for sustaining the people it controlled?

Above all, what evidence is there that Israel’s political leaders “meant these deaths to happen”? Is there any proof they “were aware that these supposed deaths would occur… a result of their methods of warfare”?

Ah, say the lawyers, you just have to trust us: we “cannot disclose any material that is currently confidential”.

But they feel no such inhibitions about commenting on information in the public domain. So what would they say about these comments by Melanie Phillips — in whom I declare an interest — writing in today’s Times:

Khan accuses [the Israelis] of starving Gaza’s civilians, wilfully killing them, intentionally attacking those queuing for food and obstructing delivery of humanitarian aid. He says Israel has “intentionally and systematically” deprived Gaza’s civilians of objects indispensable to human survival through “the imposition of a total siege over Gaza that involved completely closing the three border crossing points… for extended periods”.

But the very opposite is the case. There has been no “total siege”. Since the beginning of the war, according to Israeli statistics, 18,255 trucks have crossed from Israel into Gaza carrying 399,580 tons of food, 59,660 tons of shelter equipment and 23,110 tons of medical supplies.

It is Hamas that has been obstructing the delivery of aid and stealing civilian supplies for its own use and to sell on the black market at inflated prices, from which it is estimated to have made some $500 million, according to an analyst at the Washington Institute and supported by Shin Bet, Israel’s domestic security agency. When Israel has opened fire around the aid trucks it has been against Hamas terrorists trying to steal their cargo.

Even more astoundingly Khan makes no mention of Egypt, which also has a border with Gaza. Yet Egypt has sealed that border and refuses to let any aid supplies through at all.

If there is reliable evidence of war crimes by the Israelis, the prosecutor should present it to the court. If the evidence is unreliable, it is not going to become any stronger because it has the imprimatur of these international lawyers.

That is no reflection on the panel members concerned. They include some distinguished jurists:

Rt Hon Sir Adrian Fulford is a former judge of the ICC, a former lord justice of appeal in England and Wales and a former investigatory powers commissioner.

Elizabeth Wilmshurst CMG KC (hon), a distinguished fellow at Chatham House and deputy legal adviser at the Foreign Office 1999-2003.

Theodor Meron CMG, now 94, is a former judge at a number of international tribunals. Before he immigrated to the United States in 1978, he was legal adviser to the Israeli Ministry of Foreign Affairs.

Amal Clooney is a junior member of the English bar who has appeared at the ICC and co-founded a campaigning organisation that provides free legal support to victims of human rights abuses around the world. Her family escaped from Lebanon when she was a two-year-old.

Danny Friedman KC is a barrister at Matrix Chambers. He has already made his position clear on the conflict, writing on 18 November last year that:

Israel’s response to the attack on its territory has involved catastrophic mass fatality and untold human suffering of Palestinians — not only as a result of aerial and ground bombardment, but through, among other features, cessation of basic sustenance and amenities, destruction of medical facilities, and forced movement of populations within the blockaded geography of the Gaza strip.

These are also grave war crimes… it is difficult to see from a legal point of view how the continuation of military action in Gaza at this time would be concordant with international law.

Those comments were drawn from a speech Friedman made at dinner to raise funds for Medical Aid for Palestine. “A ceasefire is now required as a matter of law,” the KC advised his audience.

Baroness Kennedy of The Shaws LT KC is also a barrister. Her website says she is president of Medical Aid for Palestinians though it seems she is now merely an honorary patron. In an interview published last October, she warned against “collective punishment” and referred to Gaza “being reduced to rubble”. She said that only token amounts of aid were being allowed in and accused Israel of cutting off Gaza’s water supplies.

On 22 March, while she was a member of Khan’s panel, Kennedy delivered a speech on genocide in the House of Lords that suggested an equivalence between Israel and Hamas.

In Kennedy’s view,

the current conflict between Hamas and Israel follows decades of terrible conduct, by both the IDF and Hamas, before, during and after 7 October. We are now seeing the consequence of that in the current crisis in Gaza.

The panel was supported by two academic experts, Professor Marko Milanovic and Professor Sandesh Sivakumaran.

Comment

I make no criticism of these lawyers’ assessments of international criminal law — though their legal skills do not give them any special expertise to assess evidence that is untried and untested. And it is surely not for them to decide that the ICC “has jurisdiction over Israeli, Palestinian or other nationals who committed crimes in Gaza or the West Bank”.

But is Khan really justified in describing them as an “impartial group” of “independent” experts? Was each candidate asked to provide a statement of independence and impartiality? Were they asked, as is customary in international courts and tribunals, to disclose matters that could give rise to doubts about whether they had taken sides on the issue, for example by supporting a Palestinian charity?

If a public position on the conflict is no bar, did it not occur to Khan that his panel might have had more credibility if it had included London-based international lawyers who are already familiar with what is happening in Gaza? Why not include Natasha Hausdorff, a barrister and international law specialist who is also legal director of the UK Lawyers for Israel charitable trust? Or Professor Malcolm Shaw KC, who was subsequently briefed to represent Israel at the International Court of Justice? Or Professor Lord Verdirame KC, who set out the legal issues in a House of Lords debate last October? Or Sir Daniel Bethlehem KCMG KC, former legal adviser at the Foreign and Commonwealth Office?

What next?

The ICC has various checks and balances built into its rules. Khan’s task now is to persuade a pre-trial chamber of three judges to issue the arrest warrants he seeks. No doubt he hopes the chamber will not question the opinions of former judges such as Fulford and Meron.

Karim Khan KC, flanked by his trial lawyers

But Khan’s recruitment of an expert panel drawn partly from his team of 20 special advisers — not to mention the grim-faced trial lawyers who flanked him in The Hague yesterday — is a sign of weakness, not strength. It suggests he does not have the confidence to act on his own authority.

In 1998, I attended the Rome conference of campaign groups and states that created the International Criminal Court. I allowed myself to feel a sense of optimism: the world’s worst tyrants were no longer going to escape justice.

Far from it. The court’s first prosecutor was, by common consent, a disaster. His deputy, who suceeded him, was no better. So I was genuinely pleased when the job went to an English KC who had worked for the Crown Prosecution Service. This man, I thought, understands the strengths and weaknesses of international criminal law. He realises that, as a court without any powers of enforcement, he needs the support of the international community if he is going to achieve anything.

The United States was never a member of the ICC, even under the Democrats. But we have not previously seen the levels of hostility on display yesterday.

“The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” said President Biden. There was “no equivalence — none — between Israel and Hamas”.

Russia’s view of the ICC is to ignore it — as Vladimir Putin has ignored Khan’s request for his own arrest. China will never come on board.

But other states are beginning to express their concerns — including the United Kingdom, which was initially one of the court’s strongest supporters.

Yesterday, Rishi ­Sunak’s spokesman said that the request for arrest warrants was “not helpful” in moving towards a ceasefire in Gaza, nor “getting hostages out or getting humanitarian aid in”. The deputy foreign secretary told MPs:

As we have said from the outset, we do not think that the ICC has jurisdiction in this case. The UK has not recognised Palestine as a state, and Israel is not a state party to the Rome statute.

Andrew Mitchell said many people would agree with the Israeli minister Benny Gantz, who had said that “placing the leaders of a country that went into battle to protect its civilians in the same line with bloodthirsty terrorists is moral blindness”.

You don’t have to support the Israeli prime minister to think he was right in condemning Khan’s actions as a “moral outrage of historic proportions” that will “cast an everlasting mark of shame on the international court”.

Netanyahu added:

Israel is waging a just war against Hamas, a genocidal terrorist organization that perpetrated the worst attack on the Jewish people since the Holocaust. Hamas massacred 1200 Jews, raped Jewish women, burned Jewish babies, took hundreds hostage.  

Now, in the face of these horrors, Mr Khan creates a twisted and false moral equivalence between the leaders of Israel and the henchmen of Hamas. This is like creating a moral equivalence after September 11th between President Bush and Osama Bin Laden, or during World War II between FDR and Hitler.

The prosecutor’s absurd charges against me and Israel’s defense minister are merely an attempt to deny Israel the basic right of self-defence. And I assure you of one thing: this attempt will utterly fail.

Eighty years ago, the Jewish people were totally defenseless against our enemies. Those days are over. Now the Jewish people have a state and we have an army to defend our state.

Notwithstanding the blood libels Mr Khan has levelled, Israel will continue to wage this war in full compliance with international law. We will continue to take unprecedented measures to get innocent civilians out of harm’s way and to ensure that humanitarian assistance reaches those in need in Gaza.

Mr Khan also sets a dangerous precedent that undermines every democracy’s right to defend itself against terror organisations and aggressors. The ICC has no jurisdiction over Israel and Mr Khan’s actions will not stop us from waging our just war against Hamas.

But Mr Khan’s abuse of this authority will turn the ICC into nothing more than a farce.

He’s doing something else. He is callously pouring gasoline on the fires of antisemitism that are raging across the world. Through this incendiary decision, Mr Khan takes his place among the great antisemites in modern times. He now stands alongside those infamous German judges who donned their robes and upheld laws that denied the Jewish people their most basic rights and enabled the Nazis to perpetrate the worst crime in history.

Strong stuff but — unlike Netanyahu — I am still willing to regard Khan as a man of basic decency who has blundered into a situation that is far beyond his capabilities. If warrants are issued for the arrest of Netanyahu and Gallant, the US will not be the only country to ignore them. States will continue to deal with the only democracy in the Middle East, despite Khan’s actions.

And the ICC will slowly slide away, along with other internatonal tribunals and councils. They were a brave attempt to bring high ideals to a world that allowed them to be corrupted for its own ends.

Update 22 May: I was pleased to see this analysis quoted extensively in today’s Times.

The Times has also published this letter:

Update 12 June: the original version of this piece said that Elizabeth Wilmshurst was part of a team acting for Jordan in a case at the ICC in 2018.

In fact, she was one of a group of three lawyers who were applying for leave to act as amici curiae in order to argue a technical point of immunity in the case, which involved a finding that Jordan had not complied with an order of the court.

A large number of academics and practitioners similarly applied and, in the event, Wilmshurst and her colleagues were not granted leave and so took no part in the proceedings.

I apologise for this error and am happy to make the position clear.