Is Issuing an Arrest Warrant for Israeli Officials a Sound Decision?

On June 4, 42 House Democrats crossed party lines to pass a Bill sanctioning the International Criminal Court (ICC) in response to the request by the Court’s Prosecutor, Karim Khan, that the Court’s Pre-trial Chamber issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Whether such sanctions are wise or even effective is a point of fair debate. One thing is clear, however: this decision by Khan has called into question the credibility of both his exercise of prosecutorial discretion and the credibility of the Court.

Any exercise of prosecutorial discretion, especially when involving a high-profile individual, is bound to generate some criticism. One need only consider the reaction to charges against former President Donald Trump as an illustration. But the attention generated in such cases only highlights the importance that such decisions bear the hallmarks of credibility, lest the entire process they generate (or terminate) be perceived as the consequence of an abuse of discretion.

A history lesson

One of the greatest former justices of our Supreme Court emphasized the importance of the credible exercise of prosecutorial discretion while serving as the Attorney General of the United States. In 1940, Attorney General Robert Jackson—who would later not only serve as a Supreme Court Justice but also as the chief prosecutor for the Nuremberg trials—gave a speech in the Great Hall of Justice to his subordinate U.S. Attorneys titled “The Federal Prosecutor,” Jackson began by noting:

“It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.”

The world was reminded of this immense power and the breadth of discretion when the ICC’s Khan announced his intent to seek arrest warrants for senior leaders of both Hamas and Israel. While Jackson’s speech wasn’t directed to prosecutors like Khan with a unique extra-national jurisdiction over national leaders, his emphasis on the responsibility that accompanies the power of the prosecutor seems especially relevant in response to Khan’s decision.

False equivalency, flawed allegations

There undoubtedly are many celebrating this decision to pursue charges against the Israeli Prime Minister and his Defense Minister. But President Biden’s strong condemnation – characterizing the decision as “outrageous” – reflects his view that this was indeed an abuse of the broad discretion parties to the International Criminal Court entrusted to Khan. Yes, there has been tragic suffering in Gaza. But the leap from this to the allegation that Netanyahu and Gallant are complicit in directing a plan to intentionally starve civilians as a method of warfare and intentionally attack civilians—ostensibly through starvation—is questionable at best.

Khan presented these accusations at the same time he announced his intent to seek arrest warrants for senior Hamas leaders. Both the timing and the allegations contribute to the skepticism that targeting Israeli leaders is driven by genuine interests of justice. It is simply implausible to suggest some equality of immorality between the two parties to the conflict. As noted in the recent State Department report assessing whether U.S. defense articles have been used in violation of international law (quite contrary to the distorted headlines it generated), the Israeli Defense Forces demonstrate an overall commitment to the law of armed conflict. The same report emphasized Hamas’ systemic disregard for these “laws of war.” It is true, as the report noted, that the IDF should constantly strive to improve measures to prevent and mitigate civilian suffering, even when fighting a lawless enemy. But there is simply no comparison in this war when one side endeavors to mitigate civilian suffering while the other constantly endeavors to exacerbate it to generate ammunition for its international disinformation campaign.

The timing of Khan’s request for arrest warrants contributes to the false perception of equivalency between the two. Why was it so important to announce an intent to pursue these cases at the same time? Even conceding a plausible basis for pursuing prosecution against Israeli leaders, why not do what most prosecutors would instinctively do, and prioritize the most culpable defendants first?

Then there is the inexplicable decision to allege the crime of Israeli leaders intentionally attacking civilians, while omitting this offense in the list of allegations against Hamas leaders. That crime is based on two principal elements. First, the criminal act of launching an attack, and second, the intent to kill or injure civilians. It doesn’t even seem plausible that the 10,000-plus rockets launched by Hamas against Israel have been directed at military targets. How these attacks are insufficient to support an allegation of this crime against Hamas leaders is perplexing.

It is true that very few of these attacks achieved their intended criminal objective. But it is not the result of such attacks that renders them criminal, it is the intent to inflict that result. And yes, thousands of civilians have been killed in attacks launched by the IDF. But that outcome does not in itself prove the attacks were launched with the intent to target civilians or in a criminally indiscriminate manner, especially when Hamas pervasively engages in the illicit use of civilians as human shields.

All of this points to what appears to be an effort to signal some equality of criminality. Why? Returning to Jackson’s speech might provide the answer:

“If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him …”

It is impossible to prove such an abuse of discretion. But, as President Biden’s rapid condemnation indicates, Jackson’s warning of the dangers of exercising this discretion, not to advance the laudable interests of accountability and justice, but to appease widespread yet legally and factually dubious demands for a conviction, seems quite relevant to Khan’s decision.

In his interview with CNN’s Christiane Amanpour, Khan unsurprisingly emphasized a credible basis for his actions. He indicated that his decision was based on substantial evidence that has been collected to date, including eyewitness testimony, aerial photographs, videos, and, most notably, the effects of combat in Gaza. Perhaps he felt this evidence, coupled with his assumption that high-level Israeli leaders are functionally immune from their national investigative and accountability mechanisms (which is odd, considering former prime ministers have been convicted of domestic crimes and the current prime minister is facing similar allegations), compelled him to take action. Every prosecutor bears an obligation to exercise independent judgment on whether to pursue a case. But the substantial reliance on combat effects in a complex urban environment, against an enemy who seeks to exacerbate risk to civilians, coupled with the timing of his announcement, certainly justify skepticism over the true motivation for his decision.

Concluding thoughts

The ICC has an important role to play in the international community and the prevention of impunity for the most serious violations of international criminal law. But that role must begin with the credible and dispassionate exercise of prosecutorial discretion. The international community deserves no less, lest the court be perceived as a political rather than a legal instrument. Public opinion, especially in highly charged situations like what is happening in Gaza, can never be ignored by a prosecutor. But it cannot be allowed to become the driving force behind allegations of criminal misconduct. Or, as Jackson warned,

“In times of fear or hysteria, political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases.”

How this will end is a story yet to be written, but how it started is truly unfortunate. No matter what the outcome—even if it results in a rebuke to Khan’s overzealousness—the damage is done. In a war that is being fought as intensely in the international information domain as it is on the battlefield, the bell of criminality will simply never be un-rung. But this can serve as a moment of reflection for all prosecutors, reflection that should bring them back to Jackson’s closing admonition to his prosecutors:

“The citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”

Geoffrey S. Corn is a Distinguished Fellow with the Gemunder Center for Defense and Strategy (part of the Jewish Institute for National Security of America) and the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy, Texas Tech University School of Law. A retired U.S. Army Judge Advocate Officer, he served as the Army’s senior law of war advisor.

Originally published in The Cipher Brief.