InternationalVOLUME 19 ISSUE # 48

The ICC’s credibility is hanging by a thread

Upon the entry into force of the Rome Statute of the International Criminal Court in 2002, a palpable hope arose that the era of impunity for war crimes, crimes against humanity and genocide was coming to a close.

Twenty-two years later, the international legitimacy of the court hangs in the balance as it ignores calls to move swiftly against those responsible for mass atrocities in Gaza. In May, ICC Prosecutor Karim Khan requested the court to issue warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and his Defence Minister Yoav Gallant, along with three Hamas leaders. The ICC is yet to make a decision despite the mounting death toll in and destruction of Gaza amid Israel’s continuing genocidal violence.

The idea of a permanent international tribunal to prosecute war crimes first emerged in the wake of World War I in the legal circles of the victorious powers, but never materialised. After World War II, which killed an estimated 75-80 million people, several concepts of “justice” were floated. At the 1943 Tehran Conference, during which the heads of state of the USSR, the United States and Great Britain met to discuss war strategy, Soviet Union leader Joseph Stalin suggested that at least 50,000 of the German commanding staff must be eliminated. US President Franklin D Roosevelt replied, reportedly jokingly, that 49,000 should be executed. UK Prime Minister Winston Churchill argued for trying war criminals for their individual responsibilities.

Eventually, the allies established the Nuremberg and Tokyo military tribunals, which indicted 24 German and 28 Japanese military and civilian leaders, respectively. But this was, in essence, victors’ justice as none of the Allied powers’ leaders or military commanders were prosecuted for their war crimes. In the end, these tribunals were, arguably, a symbolic attempt at trying those who waged wars of aggression and committed genocide. During the following decades, no such international effort was made to bring war criminals to justice. Thus, for example, the mass murderers of peoples who rose against colonial and imperial powers never faced trial.

In 2018, the crime of aggression – defined as the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a violation of the Charter of the United Nations – was added to the court’s jurisdiction. But it didn’t take long for the high hopes for the ICC to be frustrated. A few signatories of the Rome Statute formally declared they no longer intended to become State Parties, thus nullifying their obligations. Among them were Israel, the United States and the Russian Federation. Other major powers, like China and India, did not even sign the statute.

It also did not help the ICC’s credibility that all 46 suspects it sought to prosecute in the first 20 years of its existence were Africans, including sitting heads of state. This pattern was broken for the first time in June 2022, when the court indicted three pro-Russian officials from the breakaway region of South Ossetia who were accused of committing war crimes during the Russia-Georgia war of 2008. A year later, in March 2023, the court made the sensational move to issue an arrest warrant for Russian President Vladimir Putin, just 29 days after Chief Prosecutor Khan asked for it.

The decision was, on merit, rather puzzling. Despite the lethality of the war raging in Ukraine since February 2022 and reported attacks on civilian targets, the warrant was issued for Putin’s alleged “individual criminal responsibility” for the “unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation”.

In and of itself, the warrant against a sitting president of a permanent member of the UN Security Council could have signalled the independence of the ICC and its volition to go where the evidence would take it. But given the overt psychological war between the West and Russia, some saw the court’s decision as further evidence of the influence of its Western backers. This perception could have been mitigated had the court demonstrated it was bona fide by following the overwhelming evidence of war crimes and crimes against humanity committed by Israel against the Palestinians.

In 2018, the State of Palestine submitted a referral to the ICC “to investigate, in accordance with the temporal jurisdiction of the court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine”. It took the court five years to determine in March 2023 that it could initiate an “investigation into the Situation in the State of Palestine”.

In November 2023, South Africa and five other signatories made another referral to the ICC, after which Chief Prosecutor Khan confirmed that the investigation launched in 2023 “remains ongoing and extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023”.

It took Khan no less than seven months to recommend to the court’s pre-trial chamber the issuance of warrants of arrest for Netanyahu and Gallant, notwithstanding a rather formidable amount of evidence of their personal responsibility in the war crimes perpetrated in Gaza. He also made the same recommendation with respect to three Hamas leaders, two of whom were subsequently assassinated by Israel.

Arguably, it took time and courage to seek the arrest of Netanyahu, who has the support of the US and of Mossad, Israel’s infamous intelligence agency specialising in assassinations abroad. In May, the British newspaper The Guardian revealed that Khan’s predecessor, Fatou Bensouda, had been threatened “in a series of secret meetings”

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