ICC prosecutor angers Israel, Hamas, but will that impact the war?

With the specter of war crimes charges now hanging over the Israel-Hamas war, so too are questions.

Namely, how will the possibility of the International Criminal Court issuing arrest warrants for Israeli and Hamas leaders shake up a seven-month war, a hostage crisis, and a growing famine?

For now, it appears, the arrest threat is having little influence on either Israel or Hamas in their conduct of the war, with observers saying both sides are doubling down on the battlefield and in the negotiating room.

Yet the move by prosecutor Karim Khan to seek the warrants is part of the court’s mandate to pursue accountability and uphold international law without favor, not to force an end to the war, says Kevin Jon Heller, special adviser on war crimes to the prosecutor.

“We do not make decisions on the basis of how they will influence actors,” says Dr. Heller, a professor of international law at the University of Copenhagen’s Center for Military Studies.

However, “the prosecutor emphasized before he issued an application for arrest warrants that there are hopes that the realization that we are investigating and seeking arrest warrants will have an impact.”

Mr. Khan “said clearly that many of these listed crimes continue to this day. Ultimately it is up to the actors if the issuance of arrest warrants will affect their behavior, but our hope is that it will,” he adds.

Prosecutor’s targets

On Monday, Mr. Khan sought arrest warrants for Yahya Sinwar, Hamas’ leader in Gaza and mastermind of the Oct. 7 attack on Israel, Mohamed Diab al-Masri, commander of Hamas’ military wing, and Ismail Haniya, the militant organization’s politiburo chief and its face abroad. Their arrests were sought for the war crimes and crimes against humanity of extermination, murder, taking hostages, rape and sexual violence, and torture of Israeli hostages.

Mr. Khan also requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for the war crimes of starvation of civilians as a method of warfare, “intentionally directing attacks on a civilian population,” extermination, and “wilfully causing great suffering” in Israel’s ongoing military offensive on Gaza.

Although Israel is not a party to the ICC, the prosecutor based its jurisdiction on Palestine’s status as a member state, allowing the ICC to prosecute crimes committed by Israel in Gaza and by Palestinian nationals in Israel.

A panel of judges will now review the application and evidence to make a decision on whether to issue the arrest warrants – a process that could take weeks or months.

With his office’s investigations ongoing, Mr. Khan has the ability to request arrest warrants for additional suspects or charges at any time.

Equating civilians

Predictably, Mr. Khan’s announcement drew outrage from Israeli officials and Hamas, and from Israelis and Palestinians from across their political spectrums.

Both sides denounced the allegations as equating the victims with the violators, though Mr. Khan and his office stressed that they were not equating Israel and Hamas, but Israeli and Palestinian civilians, victims who share equal rights for justice.

In a videotaped statement in English Tuesday, Mr. Netanyahu described the charges as a “moral outrage of historic proportions” and a “twisted and false moral equivalence between the leaders of Israel and the henchmen of Hamas.” On Wednesday Israel’s attorney general declared the arrest warrant requests to be “baseless.”

Within hours of the announcement Monday, Hamas denounced the court for “equating the victim with the executioner,” claiming the decision would encourage Israel to continue a “war of extermination.”

But beneath the rhetoric, both sides are taking stock of the potential fallout of what could be a serious long-term development.

The Israel Defense Forces, Defense Ministry, and likely the prime minister’s office are taking the threat of ICC-issued arrest warrants “very seriously,” says Israel Ziv, a retired Israeli general with close ties to the military.

Hamas, too, is closely studying the impact on both Israel and the militant movement, according to a source close to Hamas who did not wish to be named for security reasons.

But for now, observers say, neither side is changing their approach, as fighting returns to northern Gaza and famine spreads in the enclave.

“On the one hand, this kind of action by the ICC represents a very significant threat, and they cannot ignore it,” says Mr. Ziv, who emerged as a wartime hero in Israel for organizing the defense of besieged kibbutzim on Oct. 7. “On the other hand, this is not a war of our choice, it is a war that was imposed on us, and now our security requires us to defeat Hamas. We must do what we must.”

Israel will not halt the war because of the court’s investigation, nor will it change its operational tactics, he says. “There is no scenario in which Israel will say ‘because of the ICC we will allow this … terror group that has attacked us to survive.’ Israel must remove this threat.”

“The move will not affect how the war is run nor speed up its end,” says Chuck Freilich, a former deputy national security adviser and a senior researcher at the Institute for National Security Studies at Tel Aviv University.

“Netanyahu has his objectives, some of which are personal and some of which are real military objectives, and he will stick to them.”

Meanwhile, Palestinian observers expect Hamas to dig in its heels.

“The movement will criticize the decision in public, but internally they see the decision positively because, for the first time, Israel is accused in an international court for a war crime and crimes against humanity,” says Sari Orabi, a Ramallah-based Palestinian analyst and author specializing in Islamist movements.

“They will see this as a turning point. This may give them strength to remain steadfast on both the battlefield and in negotiations.”

Uriel Abulof, an associate professor of politics at Tel Aviv University, notes that the warrant requests are more personally targeted at Mr. Netanyahu and Mr. Gallant, and do not implicate the IDF or its top commanders.

“The course of war might be changed by various factors,” he says. “But I don’t think that the ICC by itself is a factor that is going to in any substantial way alter the course of the war, or decisions of whether to proceed in Rafah or not.”

Negotiations

Similarly, it remains unclear how or if struggling talks between Israel and Hamas for a cease-fire and the release of hostages would be impacted.

Mr. Orabi, the Palestinian analyst, says Hamas likely believes that momentum is on its side in both the international arena and on the battlefield.

“If Hamas gave in months ago, this type of decision would not have come from the ICC,” he says. 

It will likely hold out, he says, to push Israel to accept a proposal brokered by Hamas and Egypt this month that was short of what Israel had agreed to.

“The court decision gives Hamas potential leverage. It believes if it stays firm to the agreed proposal earlier this month, this added pressure combined with pressure from the U.S. may push Israel to accept,” Mr. Orabi says.

Despite the threat of war crimes charges, Hamas will hold on to the hostages to push Israel for a full withdrawal from Gaza, says the second source, adding that the unity between Hamas’ more moderate political office abroad and its hard-line leadership in Gaza “is stronger than ever before.”

“Hamas doesn’t see the arrest warrants as hurting its international standing like it does for Israel – they know full well they are already listed as a terrorist organization by many countries,” notes Mr. Orabi.

Circling the wagons

In Israel, all the main political parties have protested the ICC move, including opposition leader Yair Lapid, one of Mr. Netanyahu’s loudest critics, and cabinet ministers Mr. Gallant and Benny Gantz. Only days ago the pair called out Mr. Netanyahu for mismanaging the war and not providing a political endgame.

The ICC warrant request “is just going to make everybody more defensive and make them circle the wagons,” says Mr. Freilich, the former deputy national security adviser.

Mr. Netanyahu is already attempting to depict the ICC move as an attack on Israel itself – and a danger to every Israeli.

“I imagine that Netanyahu would like to mobilize [public outrage] to portray himself as, again, the victim of the international community, and as a defender of Israel, someone who is standing firm against all those evil forces,” says Dr. Abulof, the associate professor of politics. “Obviously with his base, this is going to work well. With others, I doubt it.”