22 May 2024

The ICC has made a grave political error


The request for arrest warrants for Israel’s prime minister, Benjamin Netanyahu, and his Defence Minister, Yoav Gallant, by the International Criminal Court has given critics of the war in Gaza an enormous boost and the apparent endorsement of an impartial international body. It is one of the ICC’s few forays outside Africa: warrants have only otherwise been for individuals involved in the conflict in Georgia, and for President Vladimir Putin and three other Russian officials in connection with the invasion of Ukraine.

The Chief Prosecutor, Karim Khan KC, has applied for warrants for Netanyahu and Gallant as well as three senior Hamas leaders: Ismail Haniyeh, Chairman of the group’s political bureau; Mohammed Deif, Commander of the Izz ad-Din al-Qassam Brigades; and Yahya Sinwar, head of Hamas in Gaza. The charges include war crimes and crimes against humanity, dating from ‘at least October 7 2023’ in the case of the Hamas leaders, and ‘at least October 8 2023’ for Netanyahu and Gallant.

This is an enormous, momentous step. Netanyahu is the elected leader of a democratic nation engaged in a defensive conflict, which of course does not give him or Gallant immunity from international law but provides important context for the prosecutor’s decision. There are several reasons why seeking an arrest warrant is contentious and possibly mistaken; but to do so in the same application which deals with senior figures in Hamas inevitably suggests a moral and political equivalence which is abhorrent.

The International Criminal Court was set up in 1998, becoming operational in 2002, to deal with accusations of genocide, crimes against humanity, war crimes and the crime of aggression. (It is worth noting that Israel and the United States were among the seven countries to vote against its establishment.) It is expressly ‘complementary to national criminal jurisdictions’ according to the Rome Statute, and there is an important qualification to its competence. The ICC cannot consider an allegation unless the ‘State which has jurisdiction over it… is unwilling or unable genuinely to carry out the investigation or prosecution.’

In the case of Vladimir Putin, for whom an arrest warrant was issued in March, it can safely be assumed that the Russian judicial system will not ‘genuinely investigate allegations of war crimes, crimes against humanity and genocide.’ The same assumption can be made for those members of Hamas whose indictment is sought. Hamas has widely been designated as a terrorist organisation, including by the United Kingdom, United States and the European Union, and is unlikely to apply rigorous legal processes to its own leadership.

To endorse the prosecutor’s request for warrants for Netanyahu and Gallant, we must say two things: firstly, that Israeli authorities will make no further investigations into the conduct of the conflict in Gaza, and therefore the ICC must intervene; and that Khan and a panel of experts he convened are able to say with confidence the evidence they have assessed suggests that the government of Israel has committed war crimes and crimes against humanity.

One assessment of the panel deals with the issue of starvation. It states:

There are reasonable grounds to believe that Netanyahu and Gallant are responsible for the killing of civilians who died as a result of starvation, either because the suspects meant these deaths to happen or because they were aware that deaths would occur in the ordinary course of events as a result of their methods of warfare.

That is a strikingly confident assertion that it knows the mind of the Prime Minister and Minister of Defence of Israel, as well as a contentious interpretation of the unfolding of a conflict in a densely populated urban area like Gaza.

There is, however, a wider question. To suggest that the ICC operates beyond the sphere of politics is a high-minded nonsense. Any international organisation, no matter how apparently benign its remit, makes political decisions because that is the nature of the relationship between states. Khan has made a choice to seek arrest warrants for Israeli ministers and the leaders of Hamas, and he must have known that one effect of this would be to suggest a moral equivalence between the actions of a terrorist group and the democratic nation taking military action in response to a terrorist outrage.

Some will insist that equivalence is wholly appropriate. Many of us will feel that it demonstrates a grotesque political interpretation of a situation which casts doubt on the good intentions of the ICC.

Hamas brought terror to Israel on October 7. The Israeli government had withdrawn from Gaza, dismantling settlements as it went, in 2005, for Hamas to take control the following year. It was in response to the murder, rape and pillage of Israeli and other civilians by Hamas, unapologetic and joyfully carried out, that the Israeli Defence Forces began Operation Swords of Iron, an invasion of Gaza designed finally to destroy Hamas. It is not necessary to deny any wrongdoing by Israeli forces to reject any comparison between Hamas’s attacks and Israel’s response.

If the ICC’s pre-trial chamber of three judges agrees with the prosecutor and issues these arrest warrants, none will be successfully applied. There will be no arrests nor prosecutions. The ICC was not in a position where it had no choice but to act. Khan may be well-intentioned and believe in the defence of justice, but his decision has done little except to entrench both sides of the conflict in their bunkers of self-belief, and cast doubt over the ICC’s levels of international support.

This was a political decision. As such we are entitled to judge it by political criteria. On that basis, I would argue it was unwise, provocative in nature and form, divisive and morally compromised. More than anything, however, it is simply ineffectual. The war goes on.

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Eliot Wilson is co-founder of Pivot Point Group.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.