The small group of Israeli experts in international law were pleased back in 2021 when the news arrived that Karim Khan had been elected as the new prosecutor of the International Criminal Court. The British barrister was known as tough and fair-minded and, unlike his predecessor Fatou Bensouda, not prone to performative anti-West bashing.
His last job before joining the ICC had been to lead a United Nations team investigating war crimes by Daesh. Early in his tenure he resumed investigations into the Taliban while dropping those into alleged crimes by the US and other western nations in the War on Terror.
His biggest target had been Vladimir Putin, against whom an arrest warrant was issued last year for abducting Ukrainian children. He did not seem as eager as his predecessor Bensouda to investigate the Israel-Palestine conflict.
Then came October 7. Khan made his first visit to Israel in early December, where he toured the scenes of the massacre in the kibbutzim around Gaza’s borders and met survivors and the families of the hostages. At the time they were impressed with his empathy and remained in contact with his office.
The first sign they had that something had gone wrong was when they were contacted by the Prime Minister’s Office and asked to use their contacts with him to urge Khan not to recommend arrest warrants against Israeli leaders and generals.
Some of that empathy remained in Khan’s submission to the ICC’s pre-trial panel issued on Monday, requesting arrest warrants for war crimes against three Hamas leaders – Yahya Sinwar, Mohammed Deif and Ismail Haniyeh - and against Benjamin Netanyahu and Yoav Gallant.
Describing Hamas’s “unconscionable crimes”, he recalled how when “speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness.”
But if Khan thought words like that would soften the blow of his decision, putting the masterminds of the Hamas attack in the dock alongside the leaders of the attacked country, he was sorely mistaken. Whatever the outcome of the procedure he has now begun, what will be remembered is that he created a moral equivalence in the eyes of the world between the perpetrator and the defender.
As more than one Israeli who has had dealings with the ICC over the years said this week, while the prosecutor’s title is a legal one, it is an intensely political position. The prosecutor, who is elected by the states which are signatories to the Rome Statute, can pick and choose his cases, as the ICC has only limited resources and can never deal with every alleged war crime being committed somewhere in the world. The prosecutor also has a public profile to be used for making the case for the ICC’s relevance. Not for nothing did Khan choose to announce his request for arrest warrants in an exclusive CNN interview with Christiane Amanpour.
It is hard to avoid the impression that Khan chose a moment to issue the warrants when Israel’s leadership, especially Netanyahu, is at its most isolated and vulnerable both at home and abroad. His focus in Netanyahu and Gallant’s case on the specific charge of using “starvation as a method of war” instead of any other Israeli military tactic, as well as targeting just the political and not the military echelon (in the case of the Hamas leaders they represent both military and political wings) is also telling.
“Israel didn’t have a policy of intentionally starving Gaza and it certainly doesn’t have one now,” said one Israeli official this week. “If this ever got to court, the prosecution would fail. But the problem is that both Gallant and Netanyahu made statements early in the war that do sound as if they intended to starve Gaza. It was bombastic and unnecessary and is now coming back to bite them. It’s exactly what an opportunistic prosecutor can use to satisfy those clamouring to put Israel’s leaders on trial.”
Few things could have been more ironic than having Knaf Zion (Wing of Zion), the controversial Israel Air Force One plane, taking off for a dry-run to Rome the morning after the ICC announcement. The long overdue and over-budget prime ministerial plane has completed its test flights. The flight on Tuesday to Fiumicino Airport was a simulation of an actual official visit abroad, with “extras” playing the part of the prime minister, his wife and the entire entourage, including the press pack.
If the ICC approves the arrest warrant against Netanyahu, he may never get to fly in the plane he commissioned and took such a close interest in the specification of its lengthy and costly refurbishment. Still, there are worse things that happened to Middle Eastern leaders in aircraft this week.
Knaf Zion, a Boeing 767 which once flew with Qantas, is 23 years old - half the age of the Bell 212 helicopter serving Iran’s president Ebrahim Raisi that crashed on Sunday near the Azerbaijani border, killing him and foreign minister Hossein Amir-Abdollahian. The fact that most of the planes used by the Iranian Air Force were purchased in the 1970s before the Islamic Revolution and that the Iranians have been struggling for decades to maintain their airworthiness is just one of a list of likelier causes for the crash than Israeli sabotage. Add to that list pilot error, flying in bad weather conditions over a steep mountain range and the many people within Iran who would have wanted to assassinate Raisi for his role as prosecutor in the Komiteh (the revolutionary committee turned law enforcement agency) back in the 1980s, which sentenced thousands to death.
Israel would have little to gain from Raisi’s death. The president is far from being a just a figurehead in Iran, but his influence over strategy and foreign policy is limited to what the Supreme Leader Ali Khamenei permits him. Raisi was totally in line with both Khamenei and the Islamic Revolutionary Guards Corps chiefs’ desire to intensify the pressure on Israel through Iran’s proxies, but these policies were in place before Raisi came to office in 2021. The drone and missile strike on Israel last month wasn’t his call, either, though he very likely supported it.
Where his death may have an effect on Israel is in the long-term. Raisi was one of the main contenders to replace the ailing 85 year-old Supreme Leader when the time comes and his death may well complicate the already convoluted succession process, weakening the Islamic regime. "Since October 7 Iran has been on the front foot,” says a senior Israeli Iran-watcher. “The main risk to the regime now is internal, but there’s little Israel can do influence affairs.” Just like the old helicopter that crashed, Israel’s best hopes are that the regime is nearing its sell-by date.
