PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move

Comply now, don’t complain later.


ICC Prosecutor Karim A. A. Khan KC

ICC Prosecutor Karim A. A. Khan KC

It came as no surprise. Yet surprised many were. After being “warned” by US Senator Tom Cotton et al. of the consequences that would follow were the ICC Office of the Prosecutor to seek arrest warrants against Benjamin Netanyahu and other top Israeli Government and military officials, Prosecutor Karim A. A. Khan KC lowered the boom and went ahead anyway. Yesterday, he submitted applications for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant as well as Hamas Head Yahya Sinwar, Commander-in-Chief of the Al-Qassam Brigades Mohammed Diab Ibrahim Al-Masri, and Head of Hamas Political Bureau Ismail Haniyeh.

Was it a response to Cotton’s silly and school-yard bully / Dirty Harryish “Go ahead, make my day” threat?  Or is it more like “a tailgate done dropped”, to borrow Charlie Crocker’s aphorism in A Man in Full? Conspiracy theorists will try to read things into the timing of this high-risk maneuver by Khan. I’ve already heard a few – some plausible, some farfetched.

My initial reaction was that it was perhaps a precipitous move that need not have been made at this time, for some of the reasons I laid out to in my last post (here). Khan in his CNN interview with Christiane Amanpour makes a convincing case on why, and why now – as opposed to delaying – having come to believe over the course of months of prodding, pleading, and probing that he had no choice but to act. And it is not as if he did not telegraph his inevitable moves when push came to shove.

Blowback in the form of accusations of being anti-Israel, anti-Semitic, anti-Jewish or anti-whatever were as inescapable as they are unfounded. If Khan is anti-anything, he is anti-crimes against humanity, anti-war crimes, anti-genocide. In the affirmative, his is pro rule of law. It matters not who initiated the conflict or how barbaric the initiator was and continues to be. All sides to a conflict are responsible for their actions. Israel has as much right to defend itself as it has an obligation to abide by the laws of war – even if the other side is not.

It is nugatory to prognosticate but for the arrest warrant applications against the main protagonists on both sides of the conflict, the negotiations for the release of hostages, a pause in the fighting, and improvements in the humanitarian crises would happen. This is a canard.

Let’s be honest: there is no such thing as good timing for requesting these arrest warrants. With an ongoing and unabated humanitarian catastrophe of dystopic proportions, Khan, whom I know to be cautious and methodical, ,politically astute and fair-minded, and diligent and conscientious – must have concluded that his only move, not gambit, was to proceed.

Too early to tell how things will end up. A decision on whether to issue the arrest warrants may take months, not weeks. A credible investigation into the alleged conduct may commence in Israel, making the case inadmissible before the ICC under the principle of complementarity. The odds of this happening seem slim to none.

Maybe the requests for arrest warrants will be denied for lack of sufficient evidence to meet the very low threshold of reasonable grounds to believe. The odds of this happening seem improbable.

Unlike his predecessors, Khan claims (and I take him at his word) – as any truly responsible and judicious prosecutor would – he does not seek arrest warrants unless his office is convinced that it has sufficient credible and admissible evidence to sustain a conviction. He has also taken an extra step – a step which should be adopted for other non-high profile/non-politically sensitive situations. He has put the evidence forming the basis of the arrest warrants to the test through a panel of distinguished experts with impeccable credentials and experience. Their report transparently makes Khan’s case that the arrest warrants being sought are justifiable (and are not the product of a rush judgment or a politically motivated or opportunistic ploy).

It is neither shocking nor scandalous that Khan, as an independent prosecutor beholden to nothing other than his oath of office, did what he did. What choice did he have? With neither side backing down, and with no realistic possibilities for a course correction that would alleviate the possible starvation of hundreds of thousands of innocent civilians caught in the middle, and convinced that arrest warrants were righteous and compulsory, Khan did exactly what was expected of him when he was selected as the ICC Prosecutor. Time will tell whether the evidence claimed to justify the seeking of these arrest warrants is sufficiently credible and reliable.

As for the concerted effort that has already begun to discredit the ICC as a judicial institution, and to defame Khan and the Office of the Prosecution as anti- this, that, and the other, my advice is to consider the motives and motivations of the source and ask your yourself: what is the proof, the evidence, the corroborations, and how reliable is it.

One last word: let’s not confuse the seeking of arrest warrants with proof of guilt. The presumption of innocence has not in the least bit been disturbed. So no jumping to conclusions, however inviting.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy.

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