Israel’s appeal to the International Criminal Court’s highest chamber to cancel the arrest warrants outstanding against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant on the basis of disqualifying ICC’s chief prosecutor Karim Khan has much more to do with US President Donald Trump than with Khan.
If the only questions were: “Can Israel get Khan disqualified, and can this lead to the arrest warrants being tossed?” the answer would surely be that the arrest warrants won’t be nixed, even if Khan is.
But there are broader issues at stake here, and, though unlikely, the ICC could choose to use disqualifying Khan as a way out from its nearly year-long conflict with the Trump administration.
Since Trump returned to power in January and gave the ICC a brief ultimatum to withdraw the arrest warrants against Israel, the US government has escalated sanctions against ICC officials, one move after another.
Cumulatively, the ICC has lost employees, funding, and general flexibility in operations due to its stance on maintaining the arrest warrants.
Concurrently, Trump has ended the war in Gaza and moved the situation into increased medium- or long-term stability.
There are always two reasons for the ICC to act. One is to prosecute crimes committed – retributive justice. The second is to deter countries from more war and more alleged war crimes.
With the war seemingly over, the second reason has disappeared.
The Appeals Chamber will now need to ask itself how important reason number one is, given that Israel will continue to fight the arrest warrants and every procedural hurdle along the way with considerable support from a range of Western countries.
In April, the chamber reversed a ruling of the lower ICC trial court that the criminal probe could continue and that had resolved all jurisdictional issues for that stage, including regarding the arrest warrants.
The Appeals Chamber said that the ICC trial court needed to reevaluate the jurisdictional issues.
This could have been just dotting the “i”s and crossing the “t”s, and once the ICC lower trial court gave Israel more of a chance to argue about jurisdiction, the chamber might approve the charges against Netanyahu and Gallant going forward.
Alternatively, the chamber may have been looking for some technical grounds to extract the institution from a years-long brutal battle with Israel and the United States.
If that was what it was trying to do, then the Khan disqualification could be the excuse it was looking for to drop this case.
That is Israel’s best-case scenario.
YET, IF the Appeals Chamber is not looking for a way out and has decided that Trump has made the Israel case a question of its basic credibility, and it cannot relent, then, while Israel may get to disqualify Khan, there is no special reason why that would help tank the case and the arrest warrants.
Is it arguable that Khan issued the arrest warrants when he did – in May 2024 – to partially try to distract from the probe into sexual harassment or sexual crime charges against one of his employees? Yes, it is possible.
But fundamentally, Khan did not create the idea of going after Israel for war crimes.
His predecessor, Fatou Bensouda, tried to open a criminal probe in 2019, and by 2021, the ICC lower court approved the probe.
So Khan inherited the case but did not create it.
His rush to go after Israel in May 2024 was not just timed with the claims against him but also came only two weeks after Israel invaded Rafah.
Khan believed Biden admin would not give as much pushback
At the time, Khan correctly believed that he would not get as much pushback from the Biden administration on the arrest warrants, given that it had just slapped Jerusalem with a partial weapons embargo for going into Rafah against vehement American objections.
So, there was, unfortunately, plenty of momentum to go after Israel at the time.
Moreover, Khan did not go after anyone in the IDF, showing at least temporary deference to the IDF’s around 100 criminal probes and potentially thousands of disciplinary probes.
He went after Netanyahu and Gallant, whom Israel, to date, has refused to probe despite advice from the attorney-general and the IDF legal division to initiate such a probe, if only to hold off the ICC.
Also, Khan has been out of the picture since May of this year, when he was suspended. Few observers think he is coming back.
So the case has been run without him now for over half a year, and he is not expected to work on it. If so, what difference does disqualifying him really make?
His two deputy prosecutors have run all of the ICC’s cases in the meantime. In fact, in the case charging former Philippines president Rodrigo Duterte with crimes against humanity, Khan was recently disqualified, and the ICC expressly allowed the case to continue anyway.
And the ICC Prosecutor’s Office has had a bunch of wins against other Israeli motions since April of this year, both at the Appeals Chamber and trial court level, all after Khan was gone.
So Israel may gain some delay by the ICC having to handle this new curveball. And, if the ICC Appeals Chamber wanted to get out of the Israel-US fight, then it might jump on this opportunity.
But without that incentive, Israel’s tactical attempt to use Khan as a counterattack point against the ICC prosecutor seems more appropriate for domestic Israeli political-legal combat than for the international legal arena.