Let Justice in the Gaza War Take Its Course

Prime Minister Benjamin Netanyahu of Israel and Hamas’s Yahya Sinwar.Credit...Photo Illustration by The New York Times. Photographs by Amir Cohen/Agence France-Presse, Via Getty Images; Mustafa Hassona/Anadolu Agency/Getty Images
Prime Minister Benjamin Netanyahu of Israel and Hamas’s Yahya Sinwar.Credit...Photo Illustration by The New York Times. Photographs by Amir Cohen/Agence France-Presse, Via Getty Images; Mustafa Hassona/Anadolu Agency/Getty Images

In seeking the arrests of senior leaders of Israel and Hamas, the prosecutor of the International Criminal Court has given the world a promise of accountability.

Regardless of the outcome of the cases, the prosecutor’s request that the court issue arrest warrants for Prime Minister Benjamin Netanyahu and Hamas’s Yahya Sinwar helps cut through the polarizing language of the moment and promotes the idea that the basic rules of international humanitarian law apply to all. Anyone demanding an end to the conflict in Gaza and the release of all hostages from the grasp of Hamas should embrace the decision.

The prosecutor, Karim Khan, has also brought accusations against Hamas’s Muhammad Deif and Ismail Haniyeh. Mr. Khan has charged the three Hamas leaders with crimes against humanity and war crimes arising out of the Oct. 7 attacks, and he emphasized that some of these crimes are being committed “to this day”, a reference to the hostages still being held by the group.

Mr. Khan is charging Israel’s most senior leadership, including Mr. Netanyahu and Defense Minister Yoav Gallant, for war crimes and crimes against humanity. While Mr. Khan recognized Israel’s “right to take action to defend its population”, he accused them of having “a common plan to use starvation as a weapon of war”, the targeting of civilians and other forms of collective punishment.

Crucially, the request recognizes compelling claims for justice on both sides of the conflict. Soon after Hamas’s attack on Israel, families of Israeli victims urged Mr. Khan to investigate Hamas for its actions, including forced disappearances, which is viewed by the court as a crime against humanity. “They simply want justice to be done”, a lawyer for some of the families said. Mr. Khan, after visiting the Rafah border crossing in late October, said of the hostage-taking, “When these types of acts take place, they cannot go uninvestigated, and they cannot go unpunished”.

The prosecutor also recognized demands on the Palestinian side. When Mr. Gallant announced a “complete siege” of Gaza days after the Oct. 7 attacks, a potentially grave violation of international law, the prosecutor had little choice but to set in motion an investigation that led to today’s action.

Palestinian human rights defenders have long urged international investigations and prosecutions of senior Israeli officials. They believed that the court’s failure to issue arrest warrants against Israeli officials early in the current war — or even before, over repression in the West Bank — undermined the deterrent effect that accountability could create. Justice delayed is justice denied, they argued.

The prosecutor heard both parties. There is no doubt that by pursuing parallel, if independent, actions against these officials, he risks the perception of equivalence between Hamas, a terrorist organization with little concern for its own people, and Israel, a democratic member of the United Nations. But that is the wrong way to read what he has done. Instead, he has acknowledged that people on both sides of this conflict have legitimate claims and that the law is designed to protect all of humanity.

Mr. Khan’s action is unprecedented: It is the first time the court has targeted a Western democracy with a vibrant court system or the top leaders of a close U.S. ally. The International Criminal Court’s founding charter, the Rome Statute, generally rules out pursuing prosecutions in countries that are able and willing to investigate and prosecute people accused of war crimes and crimes against humanity. Israel will no doubt make this a central plank of its rebuttal. But Mr. Khan’s approach remains focused on allegations like the deprivation of humanitarian aid and other collective punishments that are the responsibility of senior leaders. These are the people least likely to face accountability not just in Israeli courts but in any national court worldwide.

Similarly, the accusations against Hamas’s leaders are focused on the murders, sexual violence and kidnappings of Oct. 7. They align with provisions of the Rome Statute that provide the court with jurisdiction to investigate and prosecute war crimes and crimes against humanity.

By lodging allegations against individuals, the prosecutor moves the world away from the broad and dangerous claims of collective responsibility that have dominated sloganeering since Oct. 7. In neither case does Mr. Khan cast doubt on underlying historical or divisive political views; the charges avoid any language that questions Israel’s legitimacy as a state or claims of Palestinians’ right to self-determination. Instead, the request is an affirmation of the principle that individuals have the power to behave within the bounds of international law and to bear responsibility when they break its gravest rules.

To be sure, many people in the United States and Israel will not see it this way. House Republicans have already introduced legislation threatening to impose sanctions on Mr. Khan and his team of investigators and lawyers if they were to investigate or prosecute. Some Israelis will no doubt say that the prosecutor is acting like a friend to Hamas. And the prosecution, even if the court approves the warrants, has extraordinary barriers to surmount, not least that it cannot carry out prosecutions until the defendants are in custody in The Hague. Israel is not a member of the court and does not recognize its jurisdiction within its borders or in Gaza.

Courtroom arguments will determine the prosecution’s fate. Israeli officials may argue that the court’s jurisdiction should not extend to them because there is no Palestinian state capable of accepting its jurisdiction, even though the court previously decided otherwise. They may also contend that Hamas’s violence and use of Gazans as human shields bear the blame for the catastrophic humanitarian situation and that they do everything possible to minimize harm to civilians and ensure aid deliveries.

Let Israel argue all of this in court or start investigations to demonstrate that it has legitimate national processes to hold accountable the most senior officials responsible for I.C.C. crimes, thereby making a court prosecution unwarranted.

There is a global cost to opposing the International Criminal Court. With U.S. and European support, the court is seeking to prosecute President Vladimir Putin for alleged crimes in Ukraine. The court promotes the global interest in accountability for the worst crimes under international law. Attacks on it only benefit those who, like Mr. Putin, seek to delegitimize its existence.

The court must do its work of demonstrating the promise of global justice and individual accountability for the recognition of victims on both sides. It can show protesters around the world that international institutions can still function and help bring about justice. Both Israelis and Palestinians are owed it.

David Kaye is a law professor at the University of California, Irvine.

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