My Take | International court prosecutor rises to historic occasion

Under unprecedented intimidation and interference from Israel and the United States, Karim Khan, the chief prosecutor of the International Criminal Court (ICC), has stood his ground and applied for arrest warrants against the top leaders of Israel and Hamas.

While his application still needs to be approved by a panel of ICC judges, it will add significant pressure on Israel and its allies to end the carnage in Gaza. Depending on the outcome, it also may help to restore the effectiveness of international law and the prestige of the court in particular.

According to legal and human rights experts such as Amal Clooney and those at the Washington-based Centre for International Policy, Khan’s decision shows that:

• No conflict should be beyond the reach of international law;

• State repression, however brutal and even murderous, does not justify the resistance fighters to commit war crimes and crimes against humanity;

• The rights of self-defence and retaliation, however justified, cannot legitimise a state to commit war crimes and crimes against humanity;

• States which offer material but especially military support to one side or the other in the conflict will find themselves increasingly exposed to charges of complicity in war crimes and crimes against humanity.

The court was established in 2002 by the Rome Statute, which has been ratified by 124 countries, but neither Israel nor the United States. Both countries therefore have claimed it has no jurisdiction over them. Indeed, the US has a law from the “war on terror” era that authorises the US president to use any means necessary, including the military option, to protect US and allied personnel from punitive actions of the ICC such as detention and arrests.

But the Israeli and American rejection of the ICC is mute in this case because it clearly has jurisdiction over Palestinian territories where the alleged war crimes and crimes against humanity occurred and are occurring.

Already, the Palestinian territories are more of a state than not being a state. The UN General Assembly voted 143 against nine for a resolution that would grant it the status of a full member state. Those nine that opposed included the microstates of Papua New Guinea, Nauru, Palau and Micronesia.

Khan’s arrest warrant applications have demonstrated fairness and even-handedness, as they apply to belligerents on both sides of the conflict: Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant; and to Hamas’ leaders Yahya Sinwar, Ismail Haniyeh and Mohammed al-Masri.

In his applications, he said there were “reasonable grounds to believe” these men, Israeli and Palestinian, bore responsibility for war crimes and crimes against humanity.