Karim Khan’s Outrageous Travesty of Law and Justice The ICC prosecutor flouts all the rules to get Israel in the dock. P. David Hornik
Israel got hit hard again this week when Chief Prosecutor of the International Criminal Court Karim Khan said he was requesting arrest warrants, pending the approval of three judges, against Israeli prime minister Benjamin Netanyahu and Israeli defense minister Yoav Gallant for their conduct of the war against Hamas in Gaza.
Most egregiously, Khan charges the two Israeli leaders with “extermination and/or murder…including in the context of deaths caused by starvation, as a crime against humanity.” In international law, crimes against humanity are second only to genocide in severity.
Simultaneously, Khan asked for arrest warrants against Hamas leaders Yahya Sinwar, Muhammad Deif, and Ismail Haniyeh for charges including “extermination, murder, taking of hostages, rape and sexual assault in detention.” Khan did not stint to publicly bracket the two democratically elected Israeli leaders with the three heinous Hamas terrorists.
The charges against Netanyahu and Gallant are outrageous on a number of counts. As the Wall Street Journal notes in a stinging editorial (paywall):
Khan alleges “starvation of civilians as a method of warfare.” Hamas lists 31 Gazans who it claims died of malnutrition and dehydration in seven months of war. That’s out of 2.3 million whom Egypt won’t let out over its border.
Israel has facilitated the entry of 542,570 tons of aid, and 28,255 aid trucks, in an unprecedented effort to supply an enemy’s civilians, even while Hamas steals the aid and tries to frustrate delivery. Israel has begged Egypt for two weeks to let in aid at Rafah, while Egypt refuses. Is this the behavior of an Israeli government bent on starving Gazans?
The ICC claims Israel is “intentionally directing attacks against a civilian population,” another allegation that’s upside-down. “Israel has done more to prevent civilian casualties in war than any military in history,” John Spencer, chair of urban warfare at West Point, has said, “setting a standard that will be both hard and potentially problematic to repeat.”
The ICC also lacks jurisdiction in the case: “Israel, like the U.S., never signed the treaty that created it. To permit prosecutions of Israel, the court twisted its rules to summon a State of Palestine, with borders defined by fiat, which it could call a member state.”
In other words, Khan is treating Gaza as “the state of Palestine,” when even the UN does not define any Palestinian entity as a “state” but rather—the West Bank–based Palestinian Authority—as a non-member observer state.
Khan—it should be embarrassing to him—is clearly in a hurry to go after Netanyahu and Gallant: “While Gaza,” the Journal notes,
is a war zone and ICC staff are busy in Ukraine, the prosecutor has had no way to conduct a serious investigation. Mr. Khan had assured U.S. Senators that an inquiry would take months, and it would hear from the Israelis. ICC staff were supposed to land in Israel for preliminary discussions on Monday. Instead, Mr. Khan announced his move on CNN.
Israelis were taken aback when the ICC delegation didn’t show up on Monday; Khan himself was supposed to visit next week. Instead, he went on TV to deliver his calumnies against Israel.
There’s also the fact that the ICC is supposed to be a “court of last resort,” while Israel has its own judicial system known for its independence and activism. It’s a basic reason democracies—except Israel—don’t get charged by the ICC; instead—until now—that distinction has been reserved for the likes of Muammar Gaddafi, Vladimir Putin, and Omar al-Bashir.
Unfortunately, Khan’s mode of behavior is not new. For decades Israel has been the target of a vicious, delegitimizing, dehumanizing form of moral inversion in which it is charged with exactly the sorts of crimes the Jewish people have been subjected to: “Zionism is racism,” “apartheid,” “genocide.” On October 7, Israel underwent a horrific onslaught of murder, rape, mutilation, torture, and kidnapping. On October 17, Hamas trumpeted the blood libel that Israel had conducted an “air raid” on a hospital and killed 500 people. Most of the major world media ran eagerly with the story.
From October 7, it took only three months for Israel to be in the dock at the International Court of Justice at The Hague—for “genocide.” The charges were brought by South Africa, an Iran and Hamas ally known for severe corruption and an astronomical crime rate. Not long after that, the pairing of “Israel” and genocide” became all the rage on US and European campuses.
There’s pushback against Karim Khan’s brazen move, with Congress seeking to levy sanctions on the ICC and even Secretary of State Anthony Blinken—notable himself for constant public badgering and accusations against Israel—seeming to imply that the administration might cooperate with such an effort. Although Blinken would need to prove himself, the congressional support is genuine and very welcome to a country bearing the brunt of very cruel terrorist, military, legal, and psychological warfare.
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