CHRIS STEPHEN: Gaza May Tear the ICC Apart

The Gaza indictment fiasco, combined with an oddly timed #metoo case against the chief prosecutor, may be too much for the beleaguered legal experiment

By Chris Stephen

The International Criminal Court’s Gaza case, announced amid great fanfare in May (see above video) is in trouble. Even before Friday’s allegations of sexual harassment, which may cost chief prosecutor Karim Khan his job, it was stretching things like no other case in the court’s 22-year history. The world’s most contentious war has produced the court’s most contentious war crimes investigation.

The problems started the day Palestine joined the court. The ICC is not part of the United Nations, operating instead as a “treaty organization” (or, in simple terms, a club). The 125 nations who are members make the rules, and submit to ICC justice. Several key nations are not members – notably the United States, China and Russia. And that’s where it gets messy, because non-members are not subject to ICC law, unless their forces are operating in member territory. Which is where Israel comes in.

Membership is automatic if you apply – and any state can. The Palestinian Authority, though not exactly a state, did just that in 2015.  Though some states objected that it was not a full member of the United Nations, none moved to block registration. Palestine immediately called for investigations of the 2014 war with Israel in Gaza (even though that was conducted by the Palestinian Authority’s archrival, Hamas – again, its messy).

The chief prosecutor at the time, Fatou Bensouda, agreed. But what followed was … nothing. Normally, prosecutors take a few months to figure out what crimes might have been committed and tell the judges, in effect asking permission to start a case. Bensouda spent four years before telling judges that, yes, crimes may have happened in the 2014 war. Judges then dawdled a further two years determining whether the court had jurisdiction over Palestine, despite everyone knowing it did, since it had been accepted as a member.

Only in May 2021, weeks before Bensouda ended her term in office, did she finally get the green light to start investigating.  And yet, no investigation had actually started until the Hamas massacre of October 7 blew up. From that point, all the previous material was ignored and prosecutors got to work on the new war.

Observers were left scratching their heads. A nine-year foot-dragging is impossible to justify, unless one simply accepts the court is stalling because it fears a storm no matter what charges it brings in this most bitter of wars. 

On May 20, the plot took another twist when Khan announced the indictments he wanted. Two for Israel, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, plus three for the Hamas top brass: Ismail Haniyeh, the group’s overall chief, who was based in Qatar; Yahya Sinwar, the chief in Gaza (who succeeded Haniyeh after his July assassination in Tehran); and Mohammed Deif, the Gaza-based military chief.  

On the face of it, a bold decision. Khan was going after the top brass, not foot soldiers, which is commendable. 

The hiccup was this: The ICC is mandated to act only if countries concerned do not take on these cases in their own courts. Israel howled that, as a democracy with a developed court system, it should be given a chance to carry out its own investigations, and that these were just getting started. No matter, said Khan: ICC rules allow the court to drop a charge if, indeed, a national court prosecutes it. Meanwhile, the United States was furious, with President Joe Biden declaring it “outrageous” that Khan placed the Hamas massacre on equal footing with Israel’s (certainly brutal) response.

But reading thorough the charge sheet, Khan’s allegations appear rational, given that key evidence comes from the protagonists themselves.

Hamas operatives filmed themselves committing the massacres as they were carried out – that much is clear, and not in serious dispute.

On the Israeli side, both Netanyahu and Gallant issued statements affirming their wish to deny all aid to Gaza – which would be a war crime, justifying their charges under crimes against humanity. Of the two, Netanyahu appears to have had better lawyers: Within a fortnight, he abruptly changed his emphasis, insisting he wanted humanitarian supplies to flow. Gallant, by contrast, continued his “no aid” pronouncements for some weeks more.

But Khan’s reasoning cut no ice with the US Congress. Republicans passed a bill, which Biden never signed, mandating US sanctions against the ICC if it indicts not just US personnel – a policy that predated the current crisis of confidence – but those of America’s allies as well.

A week after the publication of the potential charges, Britain’s Guardian and two Israeli news outlets published accusations by a string of unnamed ICC officials alleging a decade of intimidation against the court by Israel, led personally by Mossad chief Yossi Cohen. Cohen issued no comment, and Israel only a partial denial, raising tension between Jerusalem and The Hague. 

By then, though, questions were being asked about Khan. First, his decision to tell the world whom he wanted charged before the judges had even decided on any indictments was unprecedented. Khan’s argument, that he did it to limit the killing, was unconvincing.

The ICC investigates many ongoing conflicts, and the chief prosecutor never before went public like this with a request – with good reason. The chief prosecutor is the only person in the world who can initiate an ICC prosecution. The rule that suspects are not named until judges name them is to protect from prosecutorial abuse: Otherwise, there is nothing to stop a chief prosecutor making unfounded accusations.

That wasn’t the only problem. Judges were furious that Khan had told CNN about the charges before he told them, in order to have a pre-recorded interview ready for the day he made his accusations. Hague journalists, meanwhile, complained that ICC officials should not be able to choose which media to brief, which to shut out.

Nor were court officials impressed by Khan’s other innovation: He convened a friendly panel of eminent war crimes experts to review his work, and they published their findings in the Financial Times, announcing they agreed with him on all points. Officially, the panel was designed to show the world his investigation was sound, but it left a bad taste. In choosing the panel himself, Khan was like a student deciding which professors could grade his homework. Then questions arose about what confidential information witnesses had given prosecutors that Khan had then shared with a panel of outsiders.

Hague judges have no timeline for how long they take to issue indictments, but the five months they have contemplated the Gaza file is long. By contrast, the 2011 investigation about Libya took three months between the start and the issuing of indictments.

This delay turned out to be critical, because as the war ground on, the court has been hit with a new problem, which is that the Hamas suspects are likely all dead. Israel says all three have been assassinated, while Hamas admits two are dead and has produced no evidence the third (Deif) is alive. It is anathema for the ICC to charge only one side in a war, so it is likely the judges have told Khan that they won’t proceed until he finds some new Hamas suspects.

Then, last week, the roof fell in.

The US-based Associated Press news agency published a story saying Khan had been investigated for sexual harassment by the court’s in-house watchdog (see its report here).

There was a suggestion that his decision to make public his indictment requests in late May might have been a smokescreen to cover the investigation into his own actions earlier in the month.

On the face of it, the allegations are career-ending: Basing its report on interviews with eight staffers and internal documents, AP reported claims that a female subordinate in the prosecutor’s office was harassed by Khan over a 12-month period. He is accused of sexual advances in ICC offices, hotels on work trips and his home. One source described a “full-on, repeated pattern of conduct carried out over a long period of time.”

Khan emphatically denied the allegations, pointing out that the alleged victim herself refused to cooperate with the investigation, which was terminated by the court. But AP reported she had instead demanded the court’s governing body, the Assembly of States Parties, investigate when it meets in December. More allegations came out in the Guardian on Sunday, accusing Khan of pressuring the woman to tell investigators the accusations were false. Again Khan issued a denial, but the ICC’s staff union has demanded an independent investigation by an external body.

Sexual harassment allegations touch a raw nerve at the ICC, because there is so much of it. Seven years ago, a union survey of the 900 ICC personnel recorded an astonishing 48 percent reporting having suffered workplace abuse at the court, including discrimination or harassment. 

Adding to the sense of chaos enveloping the Gaza investigation, one of the three judges considering the Palestine indictments announced Friday she was resigning on health grounds. Though quickly replaced, it means yet another delay, while her replacement is “read in” to the case, a process that can take weeks.

None of this does anything for the already battered credibility of the court. In over two decades of operation, it has jailed just five war criminals, at a cost of $3 billion, while setting all the wrong kinds of records. It has officially been investigating war crimes in Afghanistan since 2003, yet has never indicted anyone for anything. A Congolese defendant spent ten years in detention only to be found innocent of all charges.

As a result of all this, support for the court is fraying among member states. Seven have now refused to arrest ICC suspects landing on their soil, most recently Mongolia which last month hosted Vladimir Putin, indicted two years ago. They will likely cite the South Africa precedent: Pretoria once refused to arrest Sudan’s president Omar al Bashir, despite his being indicted for genocide. When the court complained, South Africa quit the court. It was persuaded to rejoin, but only after judges ruled no action should be taken against Pretoria.

Any Palestine indictments may be months away, likely only when the sexual harassment allegations against Khan are resolved.

Even then, it is hard to know what will remain of his charge sheet. New Hamas figures will need to be added, yet no senior commanders remain in Gaza. Its political leadership is based abroad, but while they signaled support for the October 7 massacres, proving they had actual command and control from such distance is problematic. So may be the starvation charges levelled at Netanyahu and Gallant, given that, a year on, nobody in Gaza has starved to death. Lastly, not everyone in the court is happy with Palestine’s conduct. Member states are supposed to act against all war crimes, yet the Palestinian Authority, while vociferous on Israeli operations, has not condemned Hamas atrocities or taken measures to investigate hostage-taking on its own soil.

At the same time, altogether new indictments against both sides may appear, as Khan did not address the fighting itself in his May charge sheet.

Khan had probably hoped his bold moves on Gaza would help build the court’s reputation. Instead, this most tortured of cases has shone a harsh spotlight on pre-existing cracks in the ICC’s structure. The ICC might survive Khan, but it is also possible that both will come crashing down.

Chris Stephen is author of The Future of War Crimes Justice, published in February 2024 by Melville House (London and New York) and Judgement Day: The Trial of Slobodan Milosevic (Atlantic Books, New York, 2005). He has reported on nine wars for many publications and has written about war crimes justice for The Guardian, International Institute for Strategic Studies,  Petroleum Economist, and Counsel, the magazine of the Bar of England and Wales.