Kevin Heller, advisor to the ICC prosecutor: ‘The only equivalence is that both Israel and Hamas committed international crimes’

International Criminal Court (ICC) prosecutor Karim Khan last Monday made one of Israel’s greatest fears reality by requesting an arrest warrant for Prime Minister Benjamin Netanyahu and his defense chief, Yoav Gallant, for the military offensive in Gaza. He made the same request for three members of the Hamas leadership. As a safeguard, the prosecutor relied on the opinion of a panel of independent experts and his special advisors. Among the latter is the jurist Kevin Jon Heller, one of Khan’s most trusted men, who spoke to EL PAÍS on Wednesday about the work of the past eight months, the external pressures on the ICC Prosecutor’s Office, and what took place behind the scenes before a historic announcement.

First and foremost, Heller, 52, wants to make clear that there is a “misperception” regarding Khan’s work. “He doesn’t just go to the judges’ office and ask for an arrest warrant and that’s it. He must first have sufficient evidence to consider that someone has committed a crime” — one that falls under the jurisdiction of the ICC, such as war crimes and crimes against humanity. That task is a lengthy one. “The documents will not be made public unless the judge decides so, but in comparable cases there are files of more than 150 pages with up to 1,000 footnotes,” he points out during a video call with this newspaper.

The work began within weeks of the October 7 Hamas attacks and Israel’s subsequent offensive on Gaza. One of the main challenges was the gathering of evidence about possible crimes that fall under the jurisdiction of the ICC. “From the outset the prosecutor made repeated requests to Israel to allow his team to enter Gaza. They were always refused,” says Heller, who is also a professor of international law and security at the University of Copenhagen.

That is why the testimony provided by “survivors, relatives of victims, local doctors, lawyers, journalists, and NGO workers” concerning the alleged crimes committed during the Israeli army’s campaign in the Strip was necessary. By contrast, Khan was able to gather first-hand evidence of Hamas atrocities during his December visit to the kibbutzim attacked by the Palestinian militia.

But the difficulties for the Prosecutor’s Office also came from other sources. Heller says there was “external pressure” for Khan’s announcement not to include Israeli leaders. He cites as an example a letter signed by 12 Republican senators in which they warned that a decision against the Israeli political leadership would result in “severe sanctions” against Khan and the judicial body in The Hague — neither the United States nor Israel recognizes the court. “The threat from the Republicans ends with the phrase: ‘You have been warned.’ It sounds like it was issued by the mob, it’s not the language you expect democratically elected senators to use,” Heller notes. However, he points out that international pressure has always existed: “I remember when, after the arrest warrant for [Vladimir] Putin [was issued], former Russian president Dmitry Medvedev said that Russia would launch hypersonic missiles against the headquarters of the court.”

“Hypocrisy”

Predictably, reactions to Khan’s request for arrest warrants were mixed. The European Union signaled that it would respect the decisions of the ICC Prosecutor’s Office, while countries such as the United States and Germany criticized the request against Netanyahu and Gallant coming at the same time as those against the Hamas leadership. “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” said U.S. President Joe Biden. In Heller’s view, when people talk about equivalence, “it’s not about the perpetrators: it’s about the victims, no matter what side they’re on. The only equivalence is that both sides committed international crimes.”

Netanyahu described the ICC prosecutor’s action as being directed “against the entire State of Israel,” while his government argued that the ICC has no jurisdiction over its prime minister as Israel is not a signatory to the Rome Statute that created it. In turn, countries allied with Israel, such as Hungary, have questioned whether they would execute the arrest warrants in their own territories if approved by the court.

“There’s a word for that: hypocrisy,” Heller states. The international law expert highlights the example of Putin: “When his arrest [for war crimes in Ukraine] was ordered, everyone applauded. In the U.S., both Democrats and Republicans did, and on that occasion there was no problem with Russia not being a signatory [to the Rome Statute].”

Possible additional charges

The case presented by Khan states that there are “reasonable grounds” to believe that Netanyahu and Gallant “bear criminal responsibility” for crimes such as starving civilians as a method of warfare, deliberately causing severe suffering to the civilian population, or committing extermination (through deaths caused by starvation).

However, the absence of a word so often used in the debate about the Gaza war — genocide — is noteworthy. According to Heller, the charges brought by Khan have a “realistic perspective.” “That doesn’t mean that we looked at crimes and rejected them. It’s just that in the snapshot of the current situation, those were the crimes we felt comfortable going forward with,” he explains.

However, activity in Khan’s office is not over. In fact, Heller makes a prediction: “We can expect additional charges and suspects in this case once we’ve analyzed more evidence. Nothing is off the table.” In any case, in the view of the jurist, last Monday, when the arrest requests were announced, will be remembered “as one of the most momentous days in the history of international criminal law.” Moreover, he believes it is indirectly a response to criticism of the tribunal for being focused on cases against criminals from the Global South.

“Since Nuremberg, no official from a Western state has been charged with an international crime. Now that we’re not in Africa, apparently the smoke is going to our heads,” Heller says ironically. Still, he remains optimistic: he hopes that, in view of widespread expectancy, the judges’ decision will come soon. And he trusts that, if it is affirmative, the international community “will do the right thing and comply with their obligations.”

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