Three Challenging Policy Issues for the Prosecutor in the Israel-Hamas Situation

The chief prosecutor of the International Criminal Court (ICC),^[1] Karim A. A. Khan,^[2] faces several challenging policy issues in the months ahead regarding the Israel-Hamas situation.^[3] In this comment I examine three of those issues.

I. Role of the Prosecutor

Prosecutor Khan made two particularly important public statements about the Israel-Hamas situation following October 7, 2023. The first was an address he delivered in Cairo on October 29, 2023, the text of which was published in The Guardian on November 10, 2023.^[4] Khan’s address in Cairo immediately followed his visit to the Rafah crossing at the border between Gaza and Egypt. Khan was quite expansive in Cairo about the obligations of the contentious parties and how they can be held responsible under the Rome Statute. His remarks were aimed at both Israel and the State of Palestine (Palestine), including Hamas.

Khan’s second statement occurred on November 17, 2023, in The Hague when he announced the referral by five ICC States Parties of the Israel-Hamas situation to the ICC.^[5] These are the same countries (South Africa, Bangladesh, Bolivia, Comoros and Djibouti) that filed a case^[6] under the Genocide Convention^[7] before the International Court of Justice on December 29, 2023, seeking to hold Israel accountable under that Convention and requesting provisional measures against Israel. In his statement, Khan confirmed that he was extending his investigation (initially commenced on March 3, 2021 concerning “acts committed since June 13, 2014 in Gaza and the West Bank, including East Jerusalem, which would constitute crimes under the Rome Statute.”) “to the escalation of hostilities and violence since the attacks of October 7, 2023. In accordance with the Rome Statute, my Office has jurisdiction over crimes committed on the territory of a State Party and by nationals of such a State.” He called “on all States Parties to the Rome Statute to provide us with the resources we need to enable us to effectively fulfill our mandate for all situations we examine.”

In my view, Khan need not and should not say more publicly other than cryptic confirmations that his investigations continue. He needs to build trust among a wide range of governments, many of which are non-party States of the Rome Statute, such as Israel, the United States, Turkey, most Arab countries, and influential nations like China, Russia, India, Pakistan, Iran, Iraq, and Indonesia. These countries need to understand that his office is investigating objectively, with no political agenda, and that those investigations will proceed under the auspices of a Court that they have not joined. That trust will be attained with communications in private and diplomatic channels. There will be more than enough to say publicly in the event the ICC issues arrest warrants in this situation.

Further, Khan likely is reaching out to several non-party States, particularly the United States and Israel, for cooperation in the collection of evidence, including from intelligence sources. In his statement of November 17, 2023, he missed the opportunity to highlight the importance of cooperation from non-party States, particularly those with unique capabilities. He nonetheless should explore those opportunities quietly and diplomatically with such countries. Since the United States is cooperating with Khan on the provision of intelligence relating to the Russia-Ukraine war (fought between two non-party States of the Rome Statute), there will be protests of double standards unless Washington acts in a similar fashion regarding the Israel-Hamas war (fought between Hamas, part of one State Party, the State of Palestine, and one non-party State, Israel).^[8] The best way for Khan to address that politically sensitive issue with the United States will be to do so discreetly and tactfully in the months ahead.

II. Article 18 Notification

Khan may have acted already in this respect, but just to check the box: Pursuant to Article 18 of the Rome Statute, the Prosecutor presumably has notified Israel, in particular, of the investigation now underway regarding the Israel-Hamas situation.^[9] That is an important notification as it should incentivize Israel to demonstrate that it is investigating, for example, claims of war crimes allegedly committed by the Israel Defense Forces (IDF) and the Israeli political leadership as well as public statements by government and military officials allegedly inciting genocide. Khan should privately encourage Israeli officials to undertake a comprehensive domestic investigation of Israeli actions. Granted, this will be a difficult step for Israel whose population is traumatized by the October 7 intervention and atrocities by Hamas militants.^[10]

Most Israelis at this point will have little tolerance for self-reflection about the conduct of the IDF.^[11] But everyone will need to recognize the important role for the rule of law being followed by all actors. While under Article 18(3) of the Rome Statute the Israeli investigation would be “open to review by the Prosecutor six months after the date of deferral,” if the Israeli investigation is being undertaken in good faith and diligently, then Khan should use his discretion under his own “review” to extend the period of time that Israel would continue to conduct its domestic investigation prior to continuing his own full-scale investigation. This would conform with principles of complementarity under the Rome Statute.

Khan also presumably has delivered an Article 18 notification to the State of Palestine, whether that means to officials of the Palestinian Authority or the Palestine Liberation Organization. Such notification might prove pro forma as the judicial system in Palestine likely would struggle with any widescale investigation.^[12] However implausible the procedure, nothing prevents officials of Palestine seeking foreign assistance, including even from Israel, to investigate the actions by Hamas on Israeli territory on October 7 and in the use of human shields during the combat in Gaza, the taking and holding of hostages in Gaza following the October 7 assault, and the commission of any other war crimes under the Rome Statute. All of these acts presumably will be under investigation by Khan, so Palestine has the choice whether or not to weigh in with its own investigations of Hamas’s conduct. Palestine should be as mindful of complementarity, and the risks of ignoring it, as any other State Party of the Rome Statute.

III. Negotiated Settlement

Khan and his staff should be strategizing how he will navigate any evolving diplomacy for a negotiated settlement among Israel and Palestinian representatives (however composed among the Palestinian Authority, Palestine Liberation Organization, and/or Hamas) and major foreign players such as the United States, key Arab states, the European Union, and the United Nations. Every party to those talks, other than probably Israel as long as Israeli Prime Minister Benjamin Netanyahu remains in power,^[13] will insist on the two-state solution^[14] as a major objective. What will be the fate of international criminal justice in such talks?

There might be strong pressures to keep justice issues completely separate from the diplomatic talks. Given the allegations and disinformation swirling around October 7 and the aftermath, it might prove very problematic how justice would even be discussed among the negotiators.^[15] Isolating accountability for atrocity crimes from peace objectives would leave Khan free to pursue his investigation and uphold the prospect of ICC arrest warrants. Such segregation of justice from peace, however, may prove implausible, as the two goals of peace and justice seem destined to become intertwined given the way atrocity crimes presently dominate the situation both on the ground and in international courts, namely the ICC and the ICJ. But if the segregation of peace from justice is the chosen path, then Khan simply could plod his way through investigations and ultimately persuade the Pre-Trial Chamber of the ICC to approve arrest warrants, and then let the chips fall where they may.

The more likely prospect is that justice will be factored into negotiations that center on permanently ending hostilities and forging a two-state solution. The victim populations of atrocity crimes will expect justice to be addressed in the talks and doubtless will protest strongly the absence of accountability in the settlement. But the negotiations will compel tough decisions on modifying perfect justice with imperfect justice (or none at all) in order to reach the two-state solution. Khan may choose to engage with the negotiators in order to preserve the ICC’s equities.

It would not be surprising if one or more of the following options arise during the talks:

First, Israel and Palestine could agree, upon normalization of relations, to enter into a non-surrender agreement described by Article 98(2) of the Rome Statute whereby neither country would surrender an individual under an ICC arrest warrant to the ICC without gaining the consent of the “sending State” of that individual.^[16] Such an agreement would not be so different from probable realities. As a non-party State, Israel would not want to surrender anyone, and particularly not an Israeli citizen, to the ICC. Palestine would want to avoid the surrender of any individual (most likely from Hamas) within Palestine to the control of the ICC. While such an agreement would impair the ICC’s power to prosecute alleged perpetrators of atrocity crimes in the Israel-Hamas situation, the Article 98(2) non-surrender agreement could become a compelling means in the negotiations to essentially take the ICC off the table and focus on the two-state solution.

Nothing would prevent ultimately bringing Hamas leaders to justice in Israel if captured and brought to Israel to stand trial in Israeli courts. Israel, almost certainly, would never immunize them from possible prosecution, particularly for the atrocity crimes perpetrated by Hamas on October 7. In a conditional reciprocal fashion, future Palestinian courts might try to prosecute Israeli citizens for actions taken prior to the peace agreement unless explicitly deprived of that power in the peace agreement as a pre-condition to Israeli recognition of the State of Palestine. These would be difficult trade-offs to negotiate, but they need not necessarily implicate Khan and the ICC as these issues focus on justice rendered by national courts (Israel or Palestine) and not the ICC. But Khan should factor in any such developments in his review of complementarity efforts, if any, by prosecutors and courts in Israel and Palestine.

Finally, the negotiations for the end of hostilities and implementation of the two-state solution could raise the prospect of the UN Security Council acting in a manner consistent with the objective set forth in Article 16 of the Statute, namely that:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of twelve months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.^[17]

Israel and Palestine may find this option attractive during the negotiations so as to shelve the ICC for at least one year, perhaps more, if that would mean achieving a permanent end to hostilities and the co-existence of two nations—Israel and Palestine—engaged in normalized diplomatic relations. The prospect of constructive negotiations leading to promises of international financing to rebuild Gaza and to strengthen the economy of Palestine could be a tempting objective that negotiators would be willing to prioritize over speedily achieving criminal justice of leading individual perpetrators of atrocity crimes.

In order to reach a final peace settlement enshrining the two-state solution, the five permanent members of the Security Council might find common cause in adopting a Chapter VII resolution (with sufficient non-permanent member votes) that prevents the ICC from continuing its investigation or prosecution of atrocity crimes in the Israel-Hamas situation under the terms of Article 16 of the Rome Statute. Russia and China might see political value in shielding Hamas officials from ICC scrutiny, and the United States, United Kingdom, and France might see equal political value in shielding Israeli officials from ICC investigation.

Khan will need to keep a very keen eye on negotiations that may unfold in the coming months and weigh to what extent he should personally intervene at any point during those negotiations to respond to proposals pertaining to Article 16 or Article 98(2) or other provisions of the Rome Statute.

This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.