Violations of decency

The personnel of the International Criminal Court (ICC) are weathering the storm of threats, sanctions and abuse unleashed by Israel and the US over arrest warrants for Israeli Prime Minister Binyamin Netanyahu and his former Defence Minister Yoav Gallant. They have been accused of the crimes of using starvation as a weapon of war, murder, and attacking civilians in Gaza.

The ICC deals with individuals’ war crimes while the International Court of Justice (ICJ) handles deals with such crimes perpetrated by countries. Israel is under ICJ investigation for committing the crime of genocide against Palestinians.

ICC arrest warrants are in effect in the 124 countries which are parties to the Rome Statute which created the ICC. Therefore, if either or both men set foot on their territory, governments are obliged to arrest and extradite them to The Hague in the Netherlands to stand trial.

France – along with the 26 other European Union members – is obliged to abide by its obligations. However, Paris has claimed the ICC cannot order the Israelis’ arrest because Israel is not a signatory of the Statute. Palestine is and is entitled to lodge cases against Israel for its conduct in Gaza and the West Bank. A week ago, ICC spokesman Fadi al-Abdullah contended that Israel must conduct its own credible investigation before the ICC will suspend its probe. This is the last thing Netanyahu wants. He is widely blamed for the failure of Israel’s government and military to predict, pre-empt, and protect Israelis from Hamas’ Oct. 7, 2023, attack.

“The judges are independent and impartial” and their rulings will be based on the evidence and international law, Abdullah told Israel’s Hebrew Reshet Bet radio station. “No political matters can be taken into consideration.”

The ICC has 18 judges who are elected by member states and serve on the pre-trial, trial and appeals benches. After eight months of deliberation, a panel of three judges approved the request by the prosecutor to issue arrest warrants for the two Israelis, Hamas political chief Ismail Haniyeh and military commander Mohammed Deif, who were held responsible for the October 2023 attacks on Israel. Both were killed by Israel.

The judges who have issued warrants for the Israelis are France’s Nicolas Guillou, Benin’s Reine Alapini-Gansou, and Slovenia’s Beti Hohler. All three have had distinguished careers in their own countries and fields of expertise. Hohler wrote the opinion which admitted Palestine to the ICC. She challenged Israel and the US to end their opposition when she argued that “the parties to the conflict should accept” changes in the “legal framework” introduced by Palestine’s accession.

Palestine formally applied in January 2015 and became a “state party” on April 1, 2015. After five years of deliberations, former ICC prosecutor Fatou Bensouda began an open-ended investigation in 2021 into alleged war crimes and crimes against humanity in Palestine from June 13, 2014. The warrants against Netanyahu and Gallant over the Gaza war have become part of the existing ICC investigation which could lead from pre-trial to trial to appeal.

Since current ICC Prosecutor Karim Khan applied for the warrants in May, he has been, threatened and smeared by Israel and its allies. A high-powered Scottish international lawyer of Pakistani background, Khan served on tribunals for the former Yugoslavia and Rwanda and on the special tribunal for Lebanon. He was legal council for several leaders charged with various crimes. While based in Baghdad, he advised the U N team probing war crimes committed by Daesh. He is now under investigation over charges of gender harassment by a female ICC staff lawyer. While denying the allegation, he said this was part of an effort to undermine his position at “a moment in which [I] and the International Court are subject to a wide range of attacks and threat.” The Guardian reported the allegations “are understood to pre-date his request for arrest warrants linked to the conflict in Gaza,” but this controversial step would have been anticipated as it generated protracted debate and discussion within the court and in the media before the requests were made.

Khan’s predecessor Bensouda – a Gambian judge who was prosecutor between 2012 and 2021 – has said she and her family were subjected to “direct threats to my person and my family.” A Guardian investigation in May of this year revealed that the head of Mossad, Israel’s external intelligence agency, “ran a covert operation against Bensouda as part of a broader campaign of surveillance and espionage by Israel against the ICC.” Israel denied the allegations.

The Guardian reported Israel’s intelligence agencies focused on Bensouda after she opened a preliminary inquiry into allegations of crimes committed by Israel’s armed forces and Palestinian militants in 2014. She and the ICC also faced “unprecedented pressures” from the US over alleged war crimes by its troops after 2003 in Afghanistan. Bensouda was banned from entering the US and her assets, if there were any in the US, were to be frozen. The first Trump administration grouped her with “terrorists and drug traffickers.”

Before the Netanyahu-Gallant warrants were issued, the most high-profile figure to attract a warrant was Russian President Vladimir Putin. He and his aide Maria Lvova-Belova were accused in 2023 of committing the war crime of unlawfully transferring children from occupied Ukraine to Russia during the ongoing war. Putin has severely curbed his travel since then and did not attend the BRICS (Brazil, Russia, India, China, and South Africa) summit in Johannesburg in August as South Africa is an ICC member.

Since its creation in 2002, the court has issued 56 warrants and has undertaken 32 cases with multiple suspects. Twenty-one people have been detained and have appeared before the court while at least 20 remain at large. Eleven have been convicted, four acquitted and charges have been dropped after seven died. Of the convictions, only six were sentenced for war crimes. All were African militia chiefs from the Democratic Republic of Congo, Mali, and Uganda. This has prompted ICC critics to argue the Court focused on Africans while ignoring the crimes and war crimes committed by Western figures.

Despite vehement US objections, the ICC went ahead in 2020 with investigation into individuals in the Taliban, Afghan National Army, and US forces who were accused of war crimes in Afghanistan, which joined the ICC in February 2003. The probe covered the armed conflict between pro-government and anti-government forces and focused on alleged crimes of murder, cruelty, attacks on civilians, civilian objects and relief missions, and extra-judicial imprisonment and execution.

On Nov.28, 2024, China, Costa Rica, Spain, France, Luxembourg, and Mexico referred to the ICC prosecutor’s office worsening conditions of women and girls in Afghanistan after the Taliban took power in 2021. Once in the eye of the ICC, it is difficult to impossible to escape its field of vision.

Photo: TNS