The prosecutor of the International Criminal Court (ICC), Karim Khan, made one of Israel’s greatest fears a reality on Monday: he requested an arrest warrant against Prime Minister Benjamin Netanyahu and his defense minister, Yoav Gallant, for the offensive. military in the Gaza Strip. He made the same request for three members of the Hamas leadership. As a safeguard, the prosecutor relied on the opinion of a panel of independent experts and his special advisors. Among the latter is the jurist Kevin Jon Heller, one of Khan’s trusted men, who spoke this Wednesday with EL PAÍS about the work of the past eight months, the external pressures on the TPI prosecutor’s office and what happened behind the scenes before a historic announcement.
Heller (Illinois, 52 years old) wants to make it clear, first of all, that there is a “misperception” of Khan’s work. “He doesn’t go to the judges’ office to ask for an arrest warrant and that’s it. First, he must have sufficient evidence to consider that someone has committed a crime “that is under the jurisdiction of the ICC, such as war crimes and crimes against humanity, and the task is long. “The documents will not be public if the judge does not decide, but in comparable cases there are files of more than 150 pages with up to 1,000 footers,” says the jurist by video call.
Work began within weeks of the October 7 Hamas attack and Israel’s subsequent offensive on Gaza. One of the main challenges was the collection of evidence about possible crimes that fall under the jurisdiction of the ICC. “The prosecutor made, from the beginning, repeated requests to Israel to allow his team to enter Gaza. They were always rejected,” says Heller, also a professor at the University of Copenhagen.
That is why the testimony provided by “survivors, relatives of victims, local doctors, lawyers, journalists and NGO workers” about the alleged crimes committed during the Israeli army’s campaign in the Strip was necessary. On the contrary, Khan was able to gather first-hand evidence of the brutalities committed by Hamas during his December visit to the kibbutz (collective farms) attacked by the Palestinian militia.
But the difficulties for the Prosecutor’s Office also came from outside. Heller denounces that there was “external pressure” so that Khan’s announcement did not include Israeli leaders. The prosecutor’s advisor cites as an example the letter signed by 12 Republican senators in which they assured that a decision against the Israeli political leadership would lead to “severe sanctions” against Khan and the judicial body in The Hague – neither the United States nor Israel recognizes the court. “The Republicans’ threat ends with the phrase: ‘he has been warned.’ It seems made by the mafia, it is not the language one expects democratically elected senators to use,” Heller objects. However, he emphasizes that international pressure has always existed: “I remember when, after the arrest order for [Vladímir] Putin, former Russian President Dmitry Medvedev said that Russia would launch hypersonic missiles at the court headquarters.”
“Hypocrisy”
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Predictably, reactions to Khan’s call for arrests were mixed. The European Union indicated that it would respect the decisions of the ICC Prosecutor’s Office, while countries such as the United States and Germany criticized that the requests regarding Netanyahu and Gallant fell at the same time as those of Hamas. “Application […] It’s scandalous. “And let me be clear: regardless of what this prosecutor may imply, there is no equivalence – none – between Israel and Hamas,” said the president of the United States, Joe Biden. In Heller’s opinion, when talking about this “equivalence it is not about the perpetrators: it is about the victims, regardless of which side they are on. The only equivalence is that both parties committed international crimes.”
Netanyahu described the action of the Prosecutor’s Office as an action directed “against the entire State of Israel”, while his Government argued that the ICC does not have jurisdiction over the prime minister, as Israel is not a signatory country of the Rome Statute that I believe it. In turn, countries allied with Israel, such as Hungary, have questioned whether they would execute the arrest warrants in their territories if the court approved them.
“There is a word for that: hypocrisy,” Heller maintains. The expert in International Law takes up Putin’s example: “When his arrest was ordered [por crímenes contra Ucrania], Everyone applauded. In the United States, Democrats and Republicans did it, and on that occasion there was no problem with Russia not being a signatory” of the Rome Statute.
Possible additional charges
The case presented by Khan states that there are “reasonable grounds” to believe that Netanyahu and Gallant are “criminally responsible” for crimes such as starving civilians as a method of warfare, deliberately causing severe suffering to civilians, or committing extermination (e.g. deaths caused by starvation).
However, the absence of a word so frequently used in the debate about this war stands out: genocide. According to Heller, the accusations presented by the Prosecutor’s Office have a “realistic perspective.” “It doesn’t mean we looked at crimes and rejected them. Only in the snapshot now, those were the crimes with which we felt comfortable moving forward,” she says.
Activity in the prosecutor’s office has not ended. In fact, Heller makes a prediction: “We can expect there to be additional charges and suspects in this case once we have analyzed more evidence. “There is nothing ruled out.” In any case, for the jurist, last Monday – when the arrest requests were announced – will go down in history “as one of the most momentous days in the history of international criminal law.” Furthermore, he considers that it is indirectly a response to criticism of the court for being focused on cases against criminals from the Global South.
“Since Nuremberg, no official of a State western has been accused of an international crime. Now that we leave Africa, apparently the smoke is going up to our heads,” Heller ironically says. The jurist remains optimistic: he hopes that, given the general expectation, the judges’ resolution will occur soon. And he trusts that, if it is affirmative, the countries “will do the right thing and comply with their international obligations.”
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