The ICC Prosecutor's Misguided Symmetry

The attempt by Karim Khan, the Prosecutor of the International Criminal Court (ICC), to hold Israeli leaders to the same level of accountability as Hamas leaders has seemingly led to unexpected results. Joe Biden has thrown his support behind Israel in its fight against terrorism, which may signal an end to a brief period of mutual coolness. Legal intricacies might be too luxurious a concern amid the intense risk of a third world war.

This is arguably the most delicate case in the history of the ICC, primarily because it equates attackers and victims. On 20 May, ICC Prosecutor Karim Asad Ahmad Khan called for warrants not only for the arrest of Hamas leaders but also for Israeli leaders. He appears to equate the crimes against humanity committed during the attack on 7 October 2023 with Israel's military operation in Gaza. Alternatively, he might be equating the military operation to free hostages with the murders and kidnappings of civilians.

Prosecutor Khan requested warrants against Yahya Ibrahim Hassan Sinwar, the leader of Hamas in Gaza; Mohammed Deif, the military commander of Hamas; and Ismail Haniyeh, head of Hamas's political wing, for crimes against humanity and war crimes, including extermination, murder, hostage-taking, torture, and cruel treatment.

In addition to warrants against Hamas leaders, Prosecutor Khan approached ICC judges for warrants against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for crimes against humanity, including extermination, murder, persecution, and other inhumane acts, and for war crimes including murder, infliction of bodily and mental harm, cruel treatment, intentional attacks on civilians, and deliberate starvation of the population.

Photo: Why is this scandal surrounding Prosecutor Karim Khan's(in center) request so significant? Perhaps because it threatens to undermine Israel's right to effective self-defence. Source: ICC

This Issue Transcends Legal Boundaries

This legal case is not merely a legal matter as it generates a powerful wave of propaganda, strengthening arguments from those who believe Israel is excessively defending its population against terrorists, potentially overstepping the bounds of necessary defence. This development comes a month after Iran, which significantly funds and supports Hamas, launched a massive missile and drone attack on Israel.

Benjamin Netanyahu, armed with figures, accused Karim Khan of blatant bias and questioned the objectivity of the ICC. “We are now supplying almost half of Gaza's water. Before the war, we supplied only 7%. This is completely contrary to what he (Khan) says. He claims we are starving people?”, Netanyahu stated on 21 May on "Good Morning America." "We have delivered half a million tonnes of food and medicine through 20,000 trucks. This guy wants to demonise Israel. He’s doing a great job," Netanyahu declared sarcastically.

Why is this controversy surrounding Prosecutor Karim Khan's request so significant? Probably because it undermines Israel's right to effective self-defence. In the eight months since the horrific terrorist attack on settlements near the Gaza Strip, Israel has been under increased pressure from both terrorists and the states backing them. Not only are there rocket attacks from Hamas in Gaza, but also attacks in northern Israel from Hezbollah in Lebanon, and the aforementioned direct missile and drone strikes from Iran.

And Iran likely won't stop there; it has already blamed Israel and its partners for the death of its president, Ebrahim Raisi. Thus, there is a high probability of another missile attack, or several.

"False Symmetry"

In these circumstances, the legal case before the International Criminal Court (ICC) seems capable of casting doubt on the legitimacy of Israel's defensive actions and significantly weakening its support from the United States. This is particularly relevant given President Joe Biden's recent stern remarks regarding Israel's actions in Gaza. On 8 May, President Biden stated for the first time that he would halt some American arms supplies to Israel if Prime Minister Benjamin Netanyahu ordered an invasion of the city of Rafah.

"Civilian residents have been killed in Gaza as a consequence of those bombs and other ways in which they go after population centres," Biden said to Erin Burnett of CNN in an exclusive interview on "Erin Burnett OutFront," referring to the 2000-pound bombs whose supply he suspended in early May.

"I have made it clear that if they go into Rafah, I’m not supplying the weapons that have been used historically to deal with Rafah, to deal with the cities – that deal with that problem," Biden said at the time.

However, around the same time, Israel continued operations in Rafah – a major city in the southern Gaza Strip and a Hamas stronghold after the IDF pushed the group out of the northern Gaza city in this sector.

So, when the unexpected case with the ICC emerged, Biden appeared to maintain his clear stance that defensive measures must consider humanitarian requirements, but Israel, as a victim of terror, cannot be equated with terrorists.

On 20 May, Joe Biden categorically stated that Israel's military operation in Gaza following the 7 October 2023 terrorist attacks orchestrated by Hamas "is not genocide." "We reject this," Biden said in a speech to Jewish leaders and activists, reaffirming that Americans "support Israel."

In his address at the Jewish Heritage Month celebration in the Rose Garden of the White House, President Biden condemned the ICC Prosecutor's decision to seek arrest warrants for Israeli officials for crimes against humanity: "Let me be clear: we reject the ICC's application for arrest warrants against Israeli leaders." "Whatever these warrants may imply, there is no equivalence between Israel and Hamas," Biden emphasised.

However, the stance of several European leaders differs. France and Belgium, among others, insist on the "independence" of the ICC following Prosecutor Karim Khan's almost symmetrical accusations against Israeli Prime Minister Benjamin Netanyahu and Hamas leader Yahya Sinwar.

In an interview with Stephanie Ruhle of MSNBC on 21 May, Netanyahu called Khan a "rogue prosecutor seeking to demonise the only Jewish state" and compared the current situation to issuing arrest warrants for both President George Bush and Osama bin Laden after the 9/11 attacks. Netanyahu argued that Khan's decision to seek arrest warrants for both Israeli and Hamas leaders reflects a "false symmetry."

Photo: Joe Biden has supported Israel in its fight against terrorism, which may put an end to the recent period of mutual cooling. Source: X(Twitter) POTUS

World War Three Not Yet Foreseen by All

Indeed, the "false symmetry" is perhaps the greatest lesson from this situation for the entire world, potentially capable of counteracting the propaganda gains achieved by Hamas in recent weeks. These gains were likely what Netanyahu had in mind when he accused Prosecutor Khan of stoking "antisemitic flames" in university campuses across the US and Europe, clearly referring to the widespread student protests against Israel's offensive in Gaza.

It is understandable why European leaders are deeply contemplating the independence of the ICC and the humanitarian requirements during anti-terrorist operations. Excessive tolerance towards hybrid aggression by authoritarian regimes is a legacy of quieter, more prosperous times when the spectre of World War Three had not yet knocked on the door.

And yet, World War Three is knocking. The axis of Russia-Iran-China is becoming increasingly well-defined. There is hope that pragmatic Beijing will choose the path of prosperity and trade, rather than confrontation and aggression. However, the Russia-Iran axis seems to have fully formed, with these two nations acting in concert both in Iran's hybrid aggression against Israel and Russia's direct aggression against Ukraine. Russia and Iran are actively exchanging technologies and weaponry. They are also cooperating in the context of oil sanctions.