Netanyahu case will make or break the ICC

Jamie Dettmer is opinion editor at POLITICO Europe.

The International Criminal Court (ICC) has long been dogged by questions over its credibility and relevance, and it has faced a torrent of criticism since its establishment in 2002. The Hague-based tribunal has weathered accusations of bias, doubts about fairness regarding its case selection, as well as worries about its inertia.

It was more than two years after its inaugural session before the ICC issued its first arrest warrants. Then, it was a further eight years before the court delivered its first judgment, finding Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes for conscripting child soldiers.

The court’s trial procedures have also been questioned — notably in 2018, when its appeal chamber abruptly overturned the conviction of Congolese politician Jean-Pierre Bemba, a military commander found guilty of not preventing war crimes committed by subordinates in the Central African Republic.

In reversing Bemba’s conviction, the appeal chamber departed from the court’s settled jurisprudence to the great frustration of its prosecutors. And along these lines, Australian jurist and international law practitioner Gabrielle McIntyre has faulted the ICC for repeatedly failing “to produce a coherent, well-reasoned body of jurisprudence or to demonstrate a commitment to the value of certainty and predictability in the law, elements that are fundamental to the integrity and authority of a judicial system.”

But now, the decision of the court’s Chief Prosecutor Karim Khan to pursue arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Gallant and three senior Hamas leaders has really thrown a cat among the pigeons. It’s a decision with the weight to finally be the court’s making — or its undoing.

In Israel, the reaction to Khan’s announcement was, predictably, one of outrage, with even die-hard government opponents rallying to the prime minister’s side. The warrants were taken as an attack on the state of Israel and its right to defend itself against an implacable foe, using Gaza’s civilian population as a human shield.

The Israelis complain that the experts Khan relied on in making his decision to pursue warrants have expertise in human rights law but have little background on the laws of conflict.

Also, they believe Khan is breaking a key principle governing the court’s jurisdiction. “The Court can only have jurisdiction when local courts are unable or unwilling to act,” says the Israeli ambassador to the EU Haim Regev. 

“Hamas, it is clear, has no intention of investigating its own atrocities. To the contrary, it sees every civilian casualty — Palestinian as well as Israeli — as a perverse success. Israel, on the other hand, has a rigorous legal system that has proven itself willing and able to investigate and prosecute violations of international law,” he told POLITICO.

Regev added, “In fact, Israel’s commitment to maintaining the rule of law was praised by the Prosecutor himself when he visited Israel after the October massacre. He noted that ‘Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.’”

In Washington, U.S. President Joe Biden accused Khan of placing Hamas — a violent militant organization — on the same footing as a democratic nation. “Let me be clear,” Biden said Monday, “we reject the ICC’s application for arrest warrants against Israeli leaders. Whatever these warrants may imply, there’s no equivalence between Israel and Hamas.”

Meanwhile, Germany and several other European nations, including the Czech Republic and Austria, echoed Biden, with British Prime Minister Rishi Sunak warning that the ICC move was “deeply unhelpful.”

The response from Hamas and its supporters was no less furious. “Hamas strongly denounces the attempts of the Prosecutor of the International Criminal Court to equate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders,” the group said in a statement.

Judging by the confrontational interview Khan gave to coincide with his announcement, however, the chief prosecutor knew he would face fierce reaction. “Nobody is above the law,” he told CNN emphatically.

Speaking to POLITICO on the sidelines of the Munich Security Conference last year, just a few weeks before he successfully applied to ICC judges for an arrest warrant for Russian President Vladimir Putin, Khan had emphasized his bullish ambition for the court to have real-time impact on ongoing conflicts. The 54-year-old British lawyer, who cut his teeth in the prosecutor’s office of the International Criminal Tribunal for the Former Yugoslavia, explained he wanted to ensure “there’s more legality, there’s more accountability and less space, hopefully, for the belief that the power of the gun or the bullet or the bomb will trump everything else.”

A laudable and noble ambition, indeed.

But in a bid to make ICC-adjudicated international humanitarian law more relevant and timely, Khan’s arguably playing with fire — and perhaps overreaching. It’s a move that could leave the ICC badly scorched without doing anything to alleviate the suffering of Gazans, as Israel continues to prosecute what it sees as a righteous war, which has razed the coastal enclave, prompted a catastrophic humanitarian crisis and killed thousands of civilians.

Israel continues to prosecute what it sees as a righteous war. | Amir Levy/Getty Images

For some, Khan’s swift pursuit of indictments and warrants, first for Putin and now for Israeli and Hamas leaders, is a bold display of legal rule that contrasts with the caution of his predecessors. It will put the ICC on the map, they say.

According to U.S. Senator Bernie Sanders, the ICC prosecutor is “right to take these actions” against Putin, Netanyahu and Hamas’ leader in Gaza Yahya Sinwar. “These arrest warrants may or may not be carried out, but it is imperative that the global community uphold international law,” he said.

There’s also been praise for Khan’s spirited judicial idealism as an ICC prosecutor who isn’t only targeting legal transgressions in Africa — a point Khan himself advertised in his interview, explaining that a senior Western official had warned him the ICC was “built for Africa and for thugs like Putin” — not for the West and its allies.

For the prosecutor and his supporters, justice delayed is justice denied.

But according to Mary Ellen O’Connell, professor of international law at the University of Notre Dame, what Khan’s arguably done is to expose the court’s possibly fatal flaws — those with its founding, the West’s double standards, and the practical real-time repercussions of any judicial involvement in ongoing conflicts.

A longtime ICC skeptic, O’Connell is worried Khan’s action will “cause more harm than good,” prolonging the conflicts raging in the Levant and Eastern Europe, as the indictments will undoubtedly complicate peace negotiations. “It pushes us away from the viability of talks and peace agreements and settlements. Therefore, we will have far more loss of life in this effort to hold a few individuals accountable, which, in the view of many of us in the international law realm, has never really succeeded,” she told POLITICO.

As soon as O’Connell heard the prosecutor had acted and was pursuing arrest warrants, she said her heart sank because of the predictable impact. “What did Khan think was going to happen? We don’t see wars ending because of indictments. We see fighters doubling down because the ICC has done away with any possibility of amnesty,” she said. “I think we can forget about cease-fires now — that’s what I thought as soon as I heard … I thought that’s the end of any restraint on Rafah.”

And the damage will only be compounded by the West’s double standards when it comes to the ICC, welcoming the indictment of foes like Putin, but not arrest warrants for allies — a double standard shared by non-Western powers too. And maybe advertising that is laudable, but it also “shows why the ICC was never going to fulfill the Nuremberg vision” that inspired its existence, says O’Connell.