The Real Complaining Party
Michael O’Connor
The problem with international law has traditionally been that it has no bark and no bite. It isn’t only that courts are powerless to punish without the co-operation of nation states; it’s also that crimes under international law often aren’t prosecuted at all, especially when conflicts are ongoing and leaders still in office. International law tends to catch up with its criminals long after their crimes have been committed. Considerations of power politics have often prevented even the consideration of potential crimes.
Given this, the decision by the chief prosecutor of the International Criminal Court, Karim Khan, to seek arrest warrants against senior leaders of both Israel and Hamas is unprecedented. Khan has applied for warrants to arrest the Israeli prime minister, Benjamin Netanyahu, and defence minister, Yoav Gallant, as well as three senior Hamas officials: Yahya Sinwar, the group’s leader in Gaza; Mohammed Deif, who allegedly orchestrated the attacks on 7 October; and Ismail Haniyeh, Hamas’s overall leader. This isn’t the first time the ICC has targeted a sitting head of government: in 2009, the chief prosecutor sought and was granted a warrant for the arrest of the then president of Sudan, Omar Bashir. But this is the first time since it was set up in 2002 by the Rome Statute that the ICC has intervened so forcefully in such a high-profile situation while it is still unfurling.
Within hours of the announcement, Joe Biden accused the ICC of seeking to draw a false equivalence between Israel and Hamas. But that isn’t how the law works. As Khan said on Monday, ‘international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity.’
In defending Netanyahu so fiercely, and on such tenuous grounds, Biden has exposed the inadequacy and inconsistency of American policy. It is now virtually impossible to toe the line between respect for international law and uncompromising defence of Netanyahu.
The UK government, meanwhile, objected to the prosecutor’s applications on the grounds that the ICC lacks jurisdiction because ‘the UK has not yet recognised Palestine as a state, and Israel is not a state party to the Rome Statute.’ According to one influential view, crimes against humanity can and must be prosecuted irrespective of national borders: at the Nuremberg trials, the American prosecutor, Robert Jackson, declared that ‘the real complaining party at your bar is civilisation’. In any case, a panel of legal experts convened by the ICC agreed with Khan’s view that the ICC has jurisdiction over crimes committed in Palestine and by Palestinian nationals because Palestine acceded to the Rome Statute in 2015. Setting all of this aside, the UK government’s position is inconsistent with its previous pronouncements. When the ICC indicted Vladimir Putin for crimes against humanity, this was warmly (and rightly) welcomed by the UK government, even though Russia is not a signatory to the Rome Statute.
The ICC prosecutor’s applications hold out the promise of a world in which actions are accepted to have consequences, the conduct of states is governed by law rather than brute strength, wrongs are recognised as wrongs, and human beings are treated as human beings. One can only hope that the US and UK choose to be a part of it.
Comments