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Tangible steps are needed if international law is to be respected and enforced

May 29, 2024 at 2:00 pm

Flag with the logo of the of the International Criminal Court (ICC) on March 29, 2022 in Den Haag, Netherlands [Alex Gottschalk/DeFodi Images via Getty Images]

After months of gathering evidence, the chief prosecutor of the International Criminal Court (ICC), is seeking arrest warrants for top Israeli and Hamas leaders on allegations of war crimes. Karim Khan announced that his office has “reasonable grounds” to believe that Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant bear “criminal responsibility” for “war crimes and crimes against humanity” in the Gaza Strip since the beginning of Israel’s war on Gaza, in which it has killed more than 35.000 Palestinians.

Khan stated that his team has uncovered evidence showing that Israel has “intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival. This took place alongside other attacks on civilians, including those queuing for food, the obstruction of aid delivery by humanitarian agencies, and attacks on and killings of aid workers, which forced many agencies to cease or limit their operations in Gaza.”

He also noted that Israel’s siege of the Gaza Strip, characterised by closed border crossings and restricting the transfer of food, water and medical supplies, was part of a deliberate Israeli strategy to use starvation as a “method of war”.

In the coming months, a panel of judges in the ICC’s pre-trial chamber will evaluate Khan’s request for arrest warrants. They must determine that there are “reasonable grounds” to believe the individuals in question have committed crimes within the ICC’s jurisdiction.

It is important to emphasise that the Court was granted jurisdiction over all crimes in the occupied Palestinian territory in 2015.

Although there have been rare instances where the chamber has rejected similar requests, international legal experts expect an arrest warrant to be issued against Netanyahu and Gallant. If such a decision is made, they could have both real and symbolic consequences for the accused, including arrest if they travel to countries that recognise the ICC, as state parties to the Rome Statute are obligated to enforce the Court’s decisions.

Indeed, Norway and Israel’s historical ally Germany have already said that they would comply with the Court’s arrest warrants if issued. Consequently, Netanyahu may need to adjust his travel plans based on the ICC decision. However, neither the Israeli nor the Hamas leaders named by Khan would face trial unless they are in the Court’s custody, and the ICC does not have an enforcement arm with the authority to carry out arrests.

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Despite Israel’s track record of disregarding international legal decisions, and regardless of how Tel Aviv responds if arrest warrants are actually issued, Netanyahu and Gallant will face restricted international travel, especially considering some European countries’ unexpected statements emphasising “the supremacy of international law” following Khan’s request.

Predictably, Israeli politicians, particularly Netanyahu, who is affected directly by Khan’s move, have kicked against it. “I reject with disgust the comparison made by the prosecutor in The Hague between democratic Israel and Hamas,” he said.

Israeli war cabinet member Benny Gantz, along with far-right ministers Bezalel Smotrich and Itamar Ben-Gvir, also criticised Khan, accusing him of “anti-Semitism”, a familiar allegation and default response mechanism for Israel and its supporters. Smotrich described the decision as a “display of hypocrisy and Jew hatred.” Gantz claimed that the move was a “crime of historic proportions.” Likewise, opposition leader Yair Lapid labelled it as a “disaster”.

As expected, Khan’s request also caused deep unrest in the US. Although the relationship between the White House and the ICC has never been “stellar”, even during earlier administrations, Washington generally took a more moderate stance towards the Court due to its role as an international judicial body, at least until Donald Trump’s presidency. Enmity towards the Court peaked during Trump’s tenure, and there were expectations that this attitude might soften with Joe Biden’s inauguration.

However, despite Biden’s promises to re-engage with international institutions following Trump’s isolationist policies, the US continues to have a strained relationship with the ICC. In that vein, from the time Khan initiated the investigation into Israeli officials to the recent request for arrest warrants, the tone of the US responses towards the Court has grown increasingly belligerent.

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Several Republican legislators actually warned Khan in late April against seeking arrest warrants for Netanyahu or other Israeli officials after reports began to circulate that such a request was imminent. “Such actions are illegitimate and lack legal basis,” they alleged in a letter that was made public this month, “and if carried out will result in severe sanctions against you and your institution.”

They ended with a direct threat: “Target Israel, and we will target you. If you move forward… we will move to end all American support for the ICC, sanction your employees and associates, and ban you and your families from the United States. You have been warned.”

Following Khan’s request for arrest warrants, threats from Republican legislators continued. Senator Tom Cotton wrote on X: “Khan’s announcement shows that the ICC — which is tasked with investigating war crimes, crimes against humanity, and other atrocities — is a farce. My colleagues and I look forward to making sure neither Khan, his associates, nor their families will ever set foot again in the United States.”

According to Congressman Antony D’Esposito, the ICC was “playing with fire” and there will be “serious consequences if they proceed.”

Another Republican in the House of Representatives, Brian Mast stated, “America does not recognise the ICC, but the Court sure as hell will recognise what happens when you target our allies.”

Acerbic criticism of the Court came from the Democrats as well. President Biden rejected the application as an attempt to compare the actions of Israel and Gaza by saying: “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous.”

A spokesperson for the US Department of State, Matthew Miller, said that Washington does not believe the ICC has jurisdiction over the situation in Gaza. “We have made clear that we do not believe the Court has jurisdiction in this case and oppose their investigation,” he insisted.

The responses from the upper echelon of American politics ultimately demonstrate that the US, which often “lectures” other countries on judicial independence and the rule of law, is once again choosing to overlook Israel’s persistent violations of international law and intends to grant it “legal immunity.” In this regard, American politicians have undermined all principles of judicial independence by threatening an international court. Their hypocrisy has been exposed for all to see.

Although international judicial institutions, unlike the United Nations, do not aim primarily to maintain global peace, Khan’s request and the potential arrest warrants issued by the Court represent significant steps toward punishing those responsible and preventing impunity, especially in light of the inability of the UN and other international organisations to stop the ongoing massacre and genocide in Gaza.

However, for these measures to achieve their intended goals and bring an end to civilian casualties, they must possess more than symbolic value; they must be enforceable.

This enforceability relies on respect for these decisions and compliance with their requirements.

We should not expect such respect from Israel, which considers itself to be above international law. As such, Tel Aviv should not just be invited to comply with international law through rhetoric alone. If the comatose state of the “international order of values” over the past few decades is to be revived with one last hope before it perishes, this genocide must be viewed as an opportunity for a collective response. Moving beyond condemnations and rhetoric, international actors must take tangible steps against Tel Aviv, including boycotts and sanctions.

There must be international recognition that without concrete measures and unified pressure, the promise of international legal institutions will remain unfulfilled, and the global order will continue to falter in the face of the atrocities that Israel is carrying out — with impunity — against the Palestinians in Gaza.

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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.