The ICC ‘milestone’ offers a glimmer of hope

The chief prosecutor of the International Criminal Court (ICC) Karim Khan a British barrister. has announced that the ICC is seeking arrest warrants against Israeli prime minister Benjamin Netanyahu and defence minister Yoav Gallant, the Hamas leader in Gaza, Yahya Sinwar, the head of its military wing, Mohammed al-Masri (known as Mohammed Deif), the head of its political bureau, Ismail Haniyeh, top Israeli and Hamas officials.

It is the first time that The Hague court has indicted the leader of a western-backed state.

Some points made in an article published in The Conversation* are summarised below

The ICC has long been criticised for an inability to challenge power inequalities and address structural injustices, but Karim Khan says he has “reasonable grounds to believe” the individuals bear responsibility for war crimes and crimes against humanity and has requested arrest warrants

On May 20, the US government called the ICC prosecutor’s request for arrest warrants for the two Israeli leaders “outrageous”, but even if the US decides to sanction the ICC prosecutor, as it did in 2020 when wanted to avoid investigation of the actions of US citizens in Afghanistan and the role of Israeli officials in Palestine since 2015, this will have no effect on the Court’s process.

The UK government, which has faced much criticism in recent years for failing to respect international law, said on Khan’s charges that “we do not think the ICC has jurisdiction”. This view is opposed by numerous experts in international law.

Khan says that the charges against Netanyahu and Gallant include

• extermination,
• causing starvation as a method of war
• and deliberately targeting civilians in conflict.

Several earlier cases involving heads of state were then noted

The Conversation article continues:

“If an arrest warrant is issued against Netanyahu, it will mean he can no longer travel to the 124 states that are party to the ICC and wish to abide by their commitments to international law. If he does, he could be arrested and sent to the ICC in The Hague where he would then face trial. Netanyahu’s trial could also occur in Israel if a future government is willing to abide by international law.

The ICC case is also running in parallel to South Africa’s case on a possible genocide in Gaza at the International Court of Justice (ICJ), which settles legal disputes submitted to it by states. Given that South Africa has asked the ICJ to order a ceasefire to halt the assault by Israel on Rafah, the ICC decision might influence that of the ICJ.

“While it is unlikely that Netanyahu will end up at the ICC (above) it is not impossible. But, regardless, the ICC’s decision has wide political implications”.

Netanyahu is being criticised by some within Israel for becoming a criminal and the first ever leader of a western-aligned country to be charged by the ICC. Some analysts say he has been “given a label he will never be able to shake”.

Khan’s decision marks a milestone in its mission. The prosecutions for crimes in Israel and Gaza signal the end of power politics, or “realpolitik”, where leaders have all too willingly used their power and alliances with disregard for ethical concerns.

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