Everything You Want to Know About the ICC Case Involving Israel and Hamas

I have been covering the International Criminal Court as a journalist for nearly as long as the Court’s been in existence. And as regular newsletter readers will know, I’ve been expecting this particular shoe to drop since November, when ICC prosecutor Karim Khan first visited the region and warned Hamas and Israeli officials that he’s monitoring the situation.

Well, on Monday it happened. The ICC prosecutor is seeking arrest warrants for three Hamas leaders: the top official in Gaza, Yahya Sinwar, Hamas’ military commander Muhammad Deif, and Ismail Haniyeh, the Qatar-based political leader of Hamas. These three men were charged with crimes related to the October 7th attack and their treatment of hostages in captivity. On the Israeli side, Prime Minister Netanyahu and his Defense Minister Yoav Gallant were charged with war crimes and crimes against humanity, including using starvation as a method of warfare.

For the podcast today, I interviewed one of my go-to ICC experts, Mark Kersten. He is an assistant professor of criminal justice and criminology at the University of the Fraser Valley who specializes in International Law. He’s also a senior consultant at the Wayamo Foundation. Just as I’ve been covering the ICC as a beat for almost twenty years, Mark Kersten’s been studying the ICC and issues surrounding justice and accountability in warfare.

I daresay you will not find a more informed conversation about this ICC action anywhere else. The full podcast episode is freely available everywhere you get your podcasts. The full transcript is available immediately below the fold for paying subscribers.

We discuss:

-The specific charges against Netanyahu, Gallant, Sinwar, Deif and Haniyeh.

-The difference between a “war crime” and a “crime against humanity.”

-The next steps on this case, including the different standards of evidence required to issue the warrant, confirm the charges and secure a conviction at the ICC.

-The real-world impact of arrest warrants on these five men, and why the political and diplomatic implications of arrest warrants are different for Israeli leaders and Hamas.

-How Israeli courts are able, but unwilling, to pursue war crimes charges against senior leaders.

-Why American critics who say this action creates a “false equivalence” between Hamas and Israel are wrong.

Here’s an excerpt, edited for clarity

Mark Leon Goldberg: We have a suite of charges mostly stemming on the Hamas side of the ledger from the attacks on October 7th and the subsequent kidnapping and treatment of hostages. And then on the Israeli side of the ledger, crimes stemming from their response to October 7th. And I’d say chief among those is an alleged conspiracy to starve the people of Gaza as a method of war.

Procedurally what happens next? We have this application for arrest warrants, so what is the ICC doing now?

Mark Kersten: So, the ICC prosecutor has only asked for arrest warrants to be issued. And he has to ask the Pre-Trial Chamber, which is a panel of three judges, to take into account his request. And then those three judges will ultimately together decide whether or not to issue those arrest warrants. And a couple of things are important to note in this respect. One is the legal test that has to be passed. So, for the judges to issue the warrants, they have to find that there are reasonable grounds to believe that the individuals listed in the prosecutor’s request for arrest warrants have committed the crimes listed in that request.

So, “reasonable grounds” is a very low threshold. It’s lower than the legal threshold that’s required to confirm charges against those individuals. And it’s, of course, much, much lower than what is needed for conviction, which is “beyond a reasonable doubt” as it is in any criminal law process.

And here, it’s important to note that the prosecutor didn’t kind of go it alone or exclusively use the resources within his office. Prosecutor Khan put together a panel of experts that included people like Milan Markovic, Amal Clooney, and also had the support of very senior esteemed war crimes experts like Kevin Jon Heller, etc., and they helped the prosecutor and his team of investigators really ensure that once they made this request, that it would be robust and ready for the issuance of arrest warrants.

So, it’s quite significant the amount of work that has been put into this. And, of course, many people were frustrated with how much time the ICC prosecutor was taking. But the more important thing is that he does it properly, and it appears that he did things properly.

Mark Leon Goldberg: I’d say it wasn’t that long of a time! I mean since October 7th till now is a very swift process, at least in terms of how the ICC has historically acted.

Mark Kersten: Absolutely, I think you’re right. If you follow this stuff then it doesn’t seem that long.

Mark Leon Goldberg: In terms of what comes next, what do we know about how long it usually takes Pre-Trial Chamber judges to grant or deny arrest warrants?

Mark Kersten: It really depends on a couple of things. I think there’ll be pressures both ways.

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