US pressure could derail ICC arrest warrants for Israeli leaders

When Israel started relentlessly bombing Gaza, Rasha Abu Shaban packed a handful of belongings and fled south with her parents and siblings.

Her brother stayed behind out of fear that he would never be able to come home again.

Abu Shaban was in a displacement camp in Rafah when she learned that an Israeli missile had struck her home.

“My brother was killed at the beginning of November. He was there with another family that was displaced in our house,” Abu Shaban, 38, told Al Jazeera. “We heard from [our neighbours] that an ambulance was prevented from reaching them.”

Abu Shaban is one of tens of thousands of Palestinians hungry for justice after losing loved ones, property and livelihoods to Israel’s devastating war on Gaza, which began after a Hamas-led attack on Israeli communities and military outposts on October 7.

About 1,139 Israelis were killed in that attack, and 250 were taken captive. Since then, Israel has killed more than 35,500 Palestinians in a campaign of violence that UN Special Rapporteur Francesca Albanese and other legal experts have described as a genocide.

On May 20, after months of gathering evidence, the chief prosecutor of the International Criminal Court (ICC), Karim Khan, announced that he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant as well as for Hamas leader Yahya Sinwar; the head of the movement’s political bureau, Ismail Haniyeh; and the head of its military wing, Mohammed Deif.

Netanyahu and Gallant are accused of using “starvation of civilians as a method of warfare”, “extermination”, “willfully causing great suffering” and deliberately “directing attacks against civilians”.

The Hamas leaders are accused of “extermination”, “taking hostages” and “torture”.

Khan’s announcement marks the first time an ICC chief prosecutor has sought to prosecute senior officials from a close ally of the United States, marking a significant moment in the body’s history.

While Khan’s announcement gives Abu Shaban hope that Palestinians may obtain justice someday, she fears that Israel and the US will pressure ICC judges to reject Khan’s requests.

“I have mixed feelings,” she said. “I really worry that the US and Israel will … stop the issuing of the arrests [warrants] from happening.”

US threats

Weeks before Khan’s announcement, senior Republican lawmakers in the US submitted a letter to his office that threatened to bar him and his family from the country if he applied for warrants against Israeli leaders.

In an interview with CNN’s Christiane Amanpour, Khan said a senior US elected official even told him that the ICC “was built for Africa” and for “thugs like [Russian President Vladimir] Putin” but not Western or Western-backed leaders.

“We don’t view it like that,” Khan said. “This court is the legacy of Nuremberg, and this court is a sad indictment of humanity, and this court should be the triumph of law over power and brute force.”

US President Joe Biden criticised Khan’s decision by calling the application for indictments against Israeli leaders “outrageous”.

Biden, US Secretary of State Antony Blinken and several US lawmakers said Khan had drawn a false moral equivalence between Hamas “terrorists” and democratically elected Israeli leaders.

Netanyahu, British Prime Minister Rishi Sunak and Canadian Prime Minister Justin Trudeau have all made similar statements

But Adil Haque, a legal scholar at Rutgers University in New Jersey, said those arguments have no legal weight.

Israel’s allies are using a “rhetorical device” to undermine Khan’s equal application of international law, he explained.

“Basically, the prosecutor is saying that officials in the Israeli government have violated international law and that Hamas leaders have violated international law and that those violations are serious,” Haque told Al Jazeera.

“People can discuss if charges on Hamas leaders are better or worse [than the ones brought against Israeli leaders], but that’s not the prosecutor’s concern.”

Pressure and retaliation?

Three judges from the ICC’s pre-trial chamber are now deliberating over whether to issue the arrest warrants.

In a statement, Human Rights Watch urged all members of the ICC to guard the court’s independence against “hostile pressure that is likely to increase while the ICC judges consider Khan’s request”.

The US – which is not a member of the Rome Statute, the treaty that underpins the ICC – is reportedly considering sanctions against court officials.

Three years ago, the Biden administration lifted sanctions former President Donald Trump imposed on former ICC Chief Prosecutor Fatou Bensouda and other officials.

Trump was angry that Bensouda had opened up investigations into Israeli abuses in the occupied Palestinian territory and abuses committed by US forces in Afghanistan.

Mark Kursten, a legal scholar at the University of Fraser Valley in Vancouver, believes the US may also try putting direct pressure on Palestinian officials.

“I think [a possible goal of the US] would be to get the PA [Palestinian Authority] to stop cooperating with the ICC [by getting it] to stop sending evidence,” said Mark Kursten, a legal scholar at the University of Fraser Valley in Vancouver.

Heidi Matthews, a legal scholar at York University in Toronto, added that the US also has a history of pressuring its Western allies into betraying their commitments to the Rome Statute.

“From a foreign policy perspective, [Khan’s decision] will put longtime supporters of the court who are also allies of Israel … in a position where they have to choose between continued support for the project of international criminal law and justice or to diplomatically shield Israel,” she told Al Jazeera.

‘I lost my whole life’

Local human rights groups welcomed Khan’s move as a first step in pursuing justice for Palestinians in Gaza, including those who were killed long before October 7.

A source from the Gaza-based Al Mezan Center for Human Rights, who requested anonymity for fear of reprisals from Israel, referenced Israel’s killing of 1,462 Palestinian civilians in 51 days in its 2014 war on Gaza.

An independent UN inquiry found “credible allegations of war crimes committed by Israel and Palestinian armed groups” in that war.

Four years later, Israeli troops also shot and killed unarmed Palestinian protesters in Gaza who assembled along the fence with Israel as part of the Great March of Return protests.

“We believe that [ICC] arrest warrants can have a deterrent effect,” the source from Al Mezan Center told Al Jazeera.

Abu Shaban, who is now in Qatar, added that the perceptible change in global public opinion away from Israel indicates that justice is within reach despite pressure from the US and Israel.

“The move [by the ICC] to seek warrants itself means that there are more people seeking to hold Israel accountable for the atrocities that they do. If these efforts continue, they eventually will lead to something,” she told Al Jazeera.

In addition, Abu Shaban said, she deserves justice for her brother and for the distress Israel’s occupation and siege on Gaza has caused so many Palestinians.

“I was raised under Intifadas, invasions, [communication] blackouts and humiliation at [Israeli-controlled] crossings,” she said. “I lost somebody [in my family], and I lost my life.”

“I lived my whole life under Israel’s occupation.”