THE HAGUE/WASHINGTON: On May 20, the same day that International Criminal Court prosecutor Karim Khan unexpectedly requested arrest warrants for Israeli and Hamas leaders involved in the Gaza conflict, he abruptly called off a sensitive evidence-gathering mission to the region, eight people with direct knowledge of the matter told Reuters.
According to four sources, preparations for the visit have been underway for months with the participation of US officials.
Khan’s decision to seek the warrants scuppered plans backed by Washington and London for the prosecutor and his team to visit Gaza and Israel. The court was to gather evidence of war crimes on the ground and give Israeli leaders their first opportunity to outline their position and any actions they were taking in response to war crimes allegations, five sources with direct knowledge of the exchange told Reuters.
Khan’s request for an arrest warrant for Israeli Prime Minister Benjamin Netanyahu – the first attempt by the court to detain a sitting, Western-backed leader – runs counter to efforts by the US and Britain to block the court from prosecuting Israeli leaders, the sources said.
Both countries said the court had no jurisdiction over Israel and that seeking arrest warrants would not help resolve the conflict.
Khan’s office told Reuters the decision to seek arrest warrants was made – in line with the approach taken in all cases – based on the prosecutor’s assessment that there was sufficient evidence to continue the case and that seeking arrest warrants immediately could prevent further offences.
Reuters was the first to report details about the planned trip and the consequences of its cancellation.
Khan has been working for three years to improve relations with the United States, which is not a member of the court. He has asked Washington to help him pressure its ally Israel, also a non-member, to allow his team access, four of the sources said.
His move damaged operational cooperation with the United States and angered Britain, a founding member of the court, the sources said.
A senior U.S. State Department official said Washington was continuing to cooperate with the court on investigations in Ukraine and Sudan, but three sources with direct knowledge of the U.S. administration’s cooperation with the court told Reuters that Khan’s sudden decision had strained that cooperation.
They said problems had arisen in preparing new indictments of suspects in Darfur, Sudan, and in apprehending fugitives. Two of the sources said one operation to apprehend a suspect, which they declined to detail, had not gone ahead as planned because of the loss of key U.S. support. All of the sources expressed concern that Khan’s actions would jeopardize cooperation in other ongoing investigations.
But Khan’s sudden move drew support from other countries, exposing political differences between the nation’s powers over the conflict and the court. France, Belgium, Spain and Switzerland made statements supporting Khan’s decision; Canada and Germany said more simply that they respected the court’s independence.
The International Criminal Court, the global war crimes tribunal that prosecutes individuals, has no police force to detain suspects, so it relies on the 124 countries that have ratified the 1998 Treaty of Rome that established it. Nonmembers China, Russia, the United States and Israel sometimes cooperate with the ad hoc tribunal.
A few hours earlier
Khan personally made the decision to cancel a visit to the Gaza Strip, Jerusalem and the West Bank city of Ramallah that was due to begin on May 27, two sources said.
The court and Israeli officials were scheduled to meet in Jerusalem on May 20 to finalize the mission. Khan instead requested arrest warrants that day for Netanyahu, Israeli Defense Minister Yoav Gallant and three Hamas leaders — Yahya Sinwar, Mohammed Deif and Ismail Haniyeh.
A UN official, speaking on condition of anonymity, confirmed that there had been preliminary talks about Khan’s visit to Gaza, covering security and transportation issues.
Flight tickets and meetings between senior judicial officials and Israeli officials were canceled, according to seven sources with direct and indirect knowledge of the decision, catching some of Khan’s staff by surprise.
A U.S. State Department official said the abandonment of the May visit broke with prosecutors’ usual practice of seeking involvement in states under investigation. Three U.S. sources said, without providing details, that Khan’s motives for changing course were not clearly explained and that the U-turn damaged the credibility of the court in Washington.
Khan’s office did not directly address the issues, but said it had sought to improve dialogue with Israel over the past three years and had not received any information that indicated “real action” had been taken by Israel at the national level to address the alleged crimes.
Khan “continues to welcome the opportunity to visit Gaza” and “remains open to engaging with all relevant entities,” his office said in an email.
Senior Hamas official Basem Naim told Reuters that Hamas had no prior knowledge of Khan’s intentions to send a team of investigators to Gaza.
Netanyahu’s office and the Israeli Foreign Ministry declined to comment.
The Gaza war erupted after Hamas-led militants entered southern Israel on Oct. 7, killing 1,200 people and taking about 250 hostages. Nearly 38,000 Palestinians have been killed in Israel’s land and air campaign, the Gaza health ministry said.
Washington surprised
The International Criminal Court recognised the “State of Palestine” in 2015, and Khan says his office has jurisdiction over alleged atrocity crimes committed by Palestinians in Israel and by anyone in the Gaza Strip since October 7. Neither the US nor the UK recognise the Palestinian state, so they dispute the court’s jurisdiction over the territory.
Although Washington and London say the court has no jurisdiction over the case, they have spoken to Israel to help prosecutor Khan arrange the visit, four sources close to their administrations told Reuters.
The sources said they knew Khan might seek arrest warrants for Netanyahu and other senior Israeli officials: Since at least March, Khan or members of his team have been alerting the governments of the U.S., U.K., Russia, France and China to the possibility of bringing charges against the leaders of Israel and Hamas.
A diplomatic source in a Western country said (without giving details) that covert diplomatic efforts were being made to persuade the ICC not to go down this route.
“We have worked hard to build a relationship where there are no surprises,” said the US source, who asked not to be identified due to the sensitivity of the matter.
Blinken on May 21 called Khan’s decision “deeply flawed,” saying it was inconsistent with the process he expected and would complicate prospects for an agreement on the release of hostages or a ceasefire. He told the Senate Appropriations Committee that he would work with Republicans to impose sanctions on ICC officials.
The same day, Cameron told Parliament that Kahn’s decision was a mistake.
He reacted privately furiously to the change of plan, calling it “crazy” because Khan’s team had not yet visited Israel and Gaza, and threatening in a phone call to Khan to withdraw Britain from the court and cut off its financial support, according to three sources with direct knowledge of the discussions. A Foreign Office official declined to comment on the phone call or Britain’s relationship with the court.
In June, the ICC granted Britain leave to file a written application setting out its legal argument that the ICC has no jurisdiction over the case. The issue of the court’s jurisdiction has divided members and non-members of the court.
The United States has a tense relationship with the court. In 2020, under former US President Donald Trump, Washington imposed sanctions on it, which were lifted under President Joe Biden.
Khan’s office said that “in recent years he has made significant efforts to establish and strengthen cooperation with the United States and expressed gratitude for the concrete and important assistance provided by the U.S. authorities.”
