After years of moving at a snail’s pace, news events between Israel and the International Criminal Court have been moving at a dizzying pace lately.
On April 24, the ICC Appeals Court gave Israel a happy surprise when it stalled the progress of the ICC Prosecution against Israelis by saying that the ICC lower court needed to more carefully review Jerusalem’s objections to the ICC’s jurisdiction.
But that was far from the end of the story.
Israel then tried to use that win before the ICC Appeals Court to get that same court to freeze the arrest warrants which the ICC lower court had approved against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant in November 2024.
In the middle of all of this, over May 17-18, ICC Chief Prosecutor Karim Khan took indefinite leave from his position due to unrelated allegations of sexual assault by him against an ICC employee.
In his absence, instead of the ICC’s Assembly of State Parties appointing a single acting chief prosecutor, it confusingly appointed his two deputies to both run the office.
Those deputies, Mame Mandiaye Niang (Senegal) and Nazhat Shameen Khan (Fiji) have always split the roles between criminal investigations and later stages of prosecution.
When the ICC Prosecution filed its brief to fight back against Israel on May 21 Shameen Khan signed the papers over Karim Khan’s printed signature, potentially signaling that she will run the case until his return.
One perplexing aspect of Shameen Khan’s role in all of this is that she comes from Fiji, which has an awful human rights record.
In fact, Shameen Khan, according to local coverage of Fiji developments, was fired from the country’s High Court in a dispute over political coups.
She was then out of public service for some years until she was plucked up again to serve on the UN Human Rights Council and from there to the ICC office.
Without getting deeply into which side Shameen Khan was on, the point is that she is no stranger to politics mixing in with law, and comes from a country with a problematic version of democracy, all of which raises questions about how she will understand Israel’s complex context versus the Palestinians.
In any event, her signing on to continuing the Netanyahu and Gallant arrest warrants seems to suggest that even Khan’s extended leave from his position (which could turn into him being fired) will not free Israel from the ICC’s ongoing scrutiny.
Will new charges be filed by Khan’s deputies?
One still open question is whether new charges against Israelis will be filed by Khan’s deputies, or whether, given their lesser authority, they will stick to only maintaining the existing probe against Netanyahu and Gallant.
For example, the Wall Street Journal has reported that right around when Khan decided to step aside, he was seriously considering going after Finance Minister Bezalel Smotrich and National Security Minister Itamar Ben Gvir for their support of the settlement enterprise as well as allegedly their support for Jewish extremists’ violence against innocent West Bank Palestinians, such as in Huwara and Jit.
In fact, there are even reports that some ICC officials wanted Khan to go after them and the settlement enterprise first back in May 2024, before he decided to go after Netanyahu and Gallant relating to the current war.
The strategy for going after Smotrich and Ben Gvir first was that there was more global consensus at that point against those officials and the settlement enterprise, whereas many important countries came to Netanyahu and Gallant’s defense.
But both because the deputies do not have the same standing as Khan and because the Trump administration’s sanctions are deeply harming the ICC’s operations – including around half a dozen staff members leaving to avoid sanctions – Shameen Khan may avoid adding new charges against Israelis at this moment.
For the time being, the ICC Prosecution and Israel have their hands full with fighting another round over whether the ICC has jurisdiction over Israelis.
The Prosecution and the “State of Palestine” must file their next updates by June 27, while Israel can file its response by July 11.
Unlike prior rounds of debate on these issues, it appears that the ICC Pre-Trial Chamber will try to reach a decision within several months at most, and will not let the issue drag out over a year or more.
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