ICC at crossroads

Israeli Prime Minister Benjamin Netanyahu
AP Photo -
Israeli Prime Minister Benjamin Netanyahu AP Photo -

THE MOVE this week by officials of the International Criminal Court (ICC) to seek warrants in relation to the Israel-Gaza war has implications far wider than the repercussions faced by the individuals named.

The application made by Karim Khan, KC, the court’s prosecutor, brings with it the potential to serve as a turning point for international humanitarian law and the place of the ICC within a rules-based legal order.

Mr Khan’s critics believe the turn to be in the wrong direction. We disagree.

The prosecutor believes warrants are merited against Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim al-Masri and Ismail Haniyeh for the attack on October 7.

The charges include crimes against humanity such as extermination, murder, rape and torture, as well as war crimes such as hostage-taking and cruel treatment.

Also sought are warrants for Israeli Prime Minister Benjamin Netanyahu and his minister, Yoav Gallant, who are accused of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population.

While Israel does not recognise the court, warrants might restrict its officials and complicate relationships.

For the moment, the move carries a symbolic message: the right to self-defence is not absolute.

When Hamas launched its monstrous attack on Israel, slaughtering 1,200, it is clear it attacked not only that country but also the moral fabric of the world.

Israel’s pursuit of its right to self-defence has seen 35,000 people killed in the war in Gaza, according to Palestinian health ministry figures which do not differentiate between civilian and combatant deaths. It could take 14 years to remove exploded bombs from debris, according to the UN.

In few legal traditions, however, is self-defence absolute. Action must be proportionate.

As women, children, babies, media and aid workers starve and die, the response of Mr Netanyahu and his enablers to criticism has involved a range of positions.

First, critics were told they did not understand the facts. Then, attention was drawn to the failure of some to condemn Hamas, which barbarically uses human shields and operates under hospitals. Seven months later, after “surgical” strikes alongside “errors,” only emotion is offered.

“I reject with disgust The Hague prosecutor’s comparison between democratic Israel and the mass murderers of Hamas,” Mr Netanyahu said this week, though no such comparison was made. He was echoed by US President Joe Biden, who felt the move was “outrageous.”

This country’s pivotal role in the establishment of the ICC in the 1980s means we have a profound connection to this institution.

Having now joined the list of countries formally recognising Palestine and having affirmed the two-state solution, we have an interest in defending the ICC’s legitimate role, as aspirational as it may be, in bringing about peace.


"ICC at crossroads"

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