EuropeAnalysis

Issuing warrant for Netanyahu would banish perception of ICC as western proxy

Monday’s application marks the first time the ICC prosecutor has targeted the leader of a close ally of the US

International Criminal Court prosecutor Karim Khan Photograph: Luis Acosta/AFP via Getty Images

Peter Cluskey's face
Peter Cluskey in The Hague
Mon May 20 2024 - 17:28

If the warrants sought by the ICC prosecutor for Israeli prime minister Binyamin Netanyahu, his defence minister and three Hamas leaders are granted by its judges, then the court’s reputation among critics as the postcolonial creature of what used to be known as the “Great Powers” will be gone forever.

It was exactly the perceived reluctance of the ICC to intervene in cases of interest to the US – despite the fact that America has never signed the statute which established the court – that led in the past to its dismissal by developing countries as a western proxy “hunting Africans”, to use the pointed phrase of former chair of the African Union, Hailemariam Desalegn.

Karim Khan was appointed prosecutor in 2021 with a pledge to match the evolution of the court to a rapidly emerging multipolar world.

In March 2023, arguably the first dramatic sign of that evolution came in the form of an arrest warrant for Vladimir Putin, for war crimes alleged after Russia invaded Ukraine in 2014.

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The warrant against Putin was the first against a the leader of a permanent member of the UN Security Council.

Israeli defence minister Yoav Gallant. Photograph: Jacquelyn Martin/AP

Monday’s application for warrants against Netanyahu and his outspoken defence minister, Yoav Gallant, mark the first time the ICC prosecutor has targeted the leader of a close ally of the United States.

The prosecutor is being studiously even-handed.

The charges against Netanyahu and Gallant, enumerated by Khan, include “causing extermination, causing starvation as a method of war, including the denial of relief supplies, and deliberately targeting civilians in the conflict.”

The three Hamas militants facing warrants are the organisation’s leader, Yahya Sinwar, its political leader, Ismail Haniyeh, and Mohammed Deif, commander of the Al Quassem Brigades, the military wing of the organisation in Gaza.

The putative charges listed by Khan against all three include “extermination, murder, taking of hostages, rape and sexual assault in detention”.

Hamas political leader Yahya Sinwar. Photograph: Mahmud Hams/AFP via Getty Images

Asked why he had gone ahead with an application for warrants which Israel had warned would be “an outrage of historic proportions”, Khan replied: “Nobody is above the law.”

Like the US, Israel is not a member of the ICC, but Khan said that, given the seriousness of the potential charges, those named were “free, notwithstanding their objections to jurisdiction, to raise a challenge before the judges of the court – and that’s what I advise them to do”.

The ICC can charge individuals with criminal culpability for war crimes, unlike the UN’s highest court, the International Court of Justice, which hears disagreements between states and is currently investigating whether Israel has committed genocide in Gaza.

[ ‘There is no genocide’ in Gaza, Israeli official tells International Court of Justice ]

In normal circumstances, the ICC judges could reasonably be expected to back the prosecutor and issue the arrest warrants he has requested.

These, however, are not normal circumstances. Israel has been working through diplomatic channels to prevent the issuing of the warrants and that may well continue.

However, a decision on the warrants, and the timing of it, are ultimately at the discretion of the judges.

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