Trying to arrest Netanyahu and Hamas for war crimes was only going to go one way

This is a court that cannot afford to make powerful enemies, because it has so few powerful friends.

Before yesterday, I knew Karim Khan a little.

For his authorship of one of the key war crimes law books, and for his job defending Saif Gaddafi, son of the slain Libyan leader Muammar.

Pugnacious, hard working and determined, he made his bones as a top international prosecutor, before switching to defence work, then once more switching back with his current job.

Now, it is likely that he will be best known for being the International Criminal Court (ICC) prosecutor who filed applications for warrants of arrest for both Hamas and Israeli leaders.

More than a decade ago, he was one of a group of a defence lawyers who helped me with my first book on the trial of former Serbian president Slobodan Milosevic, explaining war law at a time when it was all still evolving.

Back then, the mood of Khan and other lawyers was unbridled optimism, as the power of this justice system was coming into focus.

So I felt surprised to see his ‘war crimes’ and ‘crimes against humanity’ indictments of Israel’s Benjamin Netanyahu earlier this week, not because of the charges, for which some evidence had been accruing for weeks, but for announcing them before giving judges a chance to certify them.

Especially as it looks to have engineered the make-or-break moment for ICC.

Already facing a troubled history – with just 10 convictions in its 22-year existence – the court now faces a galaxy of powerful enemies, including the United States.

President Joe Biden issued a harsh rebuke on news of possible charges against the Israeli premier and his defence minister Yoav Gallant, calling the accusations ‘outrageous’.

And the British government, whose backing of Khan was crucial to him getting the ICC job three years ago, looks to be having second thoughts.

Khan might have hoped to present a balanced sheet by levelling the same charges of war crimes and crimes against humanity for three Hamas leaders. Instead, critics today slammed the prosecutor for false equivalence.

‘Hamas is a terrorist organisation bent on slaughter,’ Housing Secretary Michael Gove told Times Radio this morning. ‘Israel is a state, and like all states an imperfect one, but trying to defend its people. Equating the two is just nonsensical.’

In the past, the United States has taken harsh measures against the ICC, threatening to cut off aid to many ICC member states unless they give Americans immunity. It now may extend that demand concerning Israelis, especially if Trump wins the White House in November. 

Netanyahu is predictably furious, declaring Khan’s announcement ‘a moral outrage’ while Hamas official Sami Abu Zuhri said the move ‘equates the victim with the executioner’.

Khan has likely also made enemies in the court itself, for the cavalier way he made the announcement.

Normally, the prosecutor sends applications to a panel of judges, who issue indictments. Instead, Khan went public on Monday with the accusations, essentially daring the judges to refuse to rubber stamp them.

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And this is a court that cannot afford to make powerful enemies, because it has so few powerful friends.

The ICC is not part of the UN. Instead, it operates like a club, run by its 124 member states, some of whom are now turning against it.

It doesn’t help that the decision to include Palestine in its membership in 2015 was hugely controversial as it’s a nation that many ICC members – including Britain – do not recognise.

Set against that, Khan may feel he had no choice: When the Gaza war exploded in October his choices were to duck the challenge or go for broke. And Khan’s reputation is for the latter.

Khan has defended some of the world’s top war crimes suspects, including Liberia’s Charles Taylor, often flirting with trouble. In the Taylor case, he staged a theatrical walkout, with the judge booming: ‘Mr Khan, you have not been given leave to withdraw, you don’t just get up and waltz out of here.’

Khan may reason that his masters knew that they were getting a fighter when they appointed him Chief Prosecutor. And if suspects are innocent, the place to explain themselves is from the dock.

Almost certainly that will never happen: Neither Israel, which does not recognise the court, nor the Palestinian Authority, which has no control over Hamas, is going to hand over suspects.

Like Khan’s Putin indictment last year, the reality of the Gaza investigation is that, almost certainly, nobody will ever come to the Hague. That will leave the ICC swinging in the wind, impotent to make a difference in the biggest wars of the age.

Condemned, if not to closure, than to banishment to the periphery of world affairs, summed up as a nice idea that didn’t work.

But it is hard not to feel sympathy for Khan.

He was hired to prosecute, and that is what he is doing. 

And if the world isn’t ready for war crimes justice, at least war crimes justice didn’t bend to politics.

It will go out with a bang, not a whimper.

Chris Stephen is the author of The Future of War Crimes Justice, published in February this year by Melville House.

Do you have a story you’d like to share? Get in touch by emailing jess.austin@metro.co.uk. 

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