Khan Must Be Careful

ICC Has to Have the Facts Right

This newsletter explains why human rights are important, even though especially with regard to Israel human rights activists are so often wrong.

On August 27^th an organization called UK Lawyers for Israel (UKLFI) sent a detailed, 25 page letter to International Criminal Court (ICC) Prosecutor Karim Khan. The letter, which reads like a legal brief, spells out what they claim are numerous factual errors in the application Kahn submitted for arrest warrants against Bibi Netanyahu and Yoav Gallant. They go so far as to threaten to petition for Khan’s disbarment if he doesn’t make changes as they request.

We need a little background to understand what’s going on.

On May 20^th Khan announced his intention to charge both Israeli and Hamas leaders with war crimes in Gaza. He charged Israel’s Prime and Defense ministers with various offenses, mostly related to using starvation as a weapon of war by hindering humanitarian aid and ordering attacks upon civilians. As evidence he claims to have, “interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group.” While a lot of this is well known, his exact submission is known only to the court.

But obviously this accusation is hotly contested. Over 60 countries, organizations, and even individuals submitted friend of the court briefs expressing their views. One, consisting of eleven former chiefs of staff, senior military officers, and cabinet ministers from NATO countries who dubbed themselves ‘The High Level Military Group’ made a submission stating that based on their knowledge and research the allegations against Israeli leaders are false. They wrote:

It is our assessment that whatever food insecurity exists today among the population of Gaza is not due to Israel impeding entry or distribution of aid into the territory - either deliberately or arbitrarily - but to the unavoidable effects of large-scale urban warfare, compounded by Hamas hijacking aid for their own military purposes (paragraph 7). . . It is our professional view that accusations of an intent to starve civilians by the Israeli Prime Minister and Minister of Defence are unsupported by all available evidence, most importantly by the actual conduct of IDF operations in and around Gaza (paragraph 16).

In his response brief, Khan urged the court not to consider this. He explains that this deliberation should be ‘ex-parte’, meaning that evidence is presented only by the prosecutor. The judges’ only function at this stage, similar to a grand jury in the United States, is to review the charges to make sure they are reasonable before arrest warrants are issued. It is a check and oversight of the prosecutor’s power. It’s acceptable for the defendant to have no say in this process because, if indicted, the defendant will be able to tell their side of the story and make their case at trial.

But this ICC case is quite different from a regular criminal prosecution. The ICC has no means of enforcing its warrants and has to rely on member states to make arrests. Israel is of course not an ICC member, so there is little prospect of Netanyahu and Gallant ever being arrested and put on trial.

Since there will probably not be a trial, a finding by the court that there are reasonable grounds for the charges and subsequent Issuance of arrest warrants will likely be understood by the public as a definitive finding that Netanyahu and Gallant are guilty. The fact that they never had the chance to present evidence or tell the judges their side of the story will be overlooked.

That’s a main impetus behind the UKLFI letter. They explain that specifically because the defendants are not allowed to present their case, the prosecutor has a special ethical obligation to make sure to present the court with all evidence. This includes evidence in favor of the defendant, and new evidence that may have come to light only after the warrants application was submitted. In this spirit, they mention specifically a recent study demonstrating that there has not in fact been a famine in Gaza.

So far Khan has indicated that he is unwilling to change course and revise his petition. This is a mistake. How he handles this complex and controversial case will affect the ICC for decades to come. If warrants are issued based on what may be portrayed as biased, inaccurate, or cherry-picked evidence, this will lessen the court’s reputation for impartiality and credibility and will be construed as international criminal law being bent to serve ideological and political purposes. Anyone that wants the ICC to grow into an effective tool of enforcing humanitarian law should agree on the need to avoid that. I’d assume Karim Khan included.