In an important decision, which will do much to enhance its support and standing in the developing world, the judges of the International Criminal Court (ICC) yesterday issued their first warrant for the arrest of a western leader, Israel’s prime minister Binyamin Netanyahu.
He is sought, though unlikely to surrender, to answer charges “for crimes against humanity and war crimes” in Gaza.
The warrants, and Israel’s refusal to honour them or recognise the legitimacy of the UN court, will increase the country’s political isolation internationally over a war that began after the horrific massacre of Israeli civilians by Hamas and is now almost universally seen as being conducted using disproportionate means. More than 43,000 Gazans are believed to have been killed, while the flattened territory is teetering on the verge of famine.
The ICC warrants, sought since May by the court’s chief prosecutor, target Netanyahu, recently fired Israeli defence minister Yoav Gallant, and a leader of Hamas, Muhammad Deif, who may have been killed in an Israeli attack. Two other former Hamas leaders, Yahya Sinwar and Ismail Hanniyeh, were also sought but both have been killed by Israeli forces.
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Israel appears determined not to surrender Netanyahu or Gallant and continues to maintain that the court has no jurisdiction as Israel is not one of the 124 signatory states to the Rome Statute which established the ICC and confers legal authority on it. But the State of Palestine, recognised as such by the UN, and more recently by Ireland, is a signatory – it signed up in January 2015 despite vigorous Israeli protests – and the court has already found that its jurisdiction does extend to considering acts by Israel’s forces in a foreign signatory state, such as Gaza and the West Bank.
The court yesterday firmly rejected Israel’s contention to the contrary and the idea that a state can buck the rule of law, particularly international humanitarian law related to armed conflict, by opting out of its collective enforcement.
Importantly, the court has not pronounced on Netanyahu’s guilt, only that there are reasonable cases to answer on charges that include impeding humanitarian aid, restricting access for relief operations and using hunger as a weapon of war. Because of lack of evidence, the court considered only two cases of attacks directed against civilians, but found that both men bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against the civilian population of Gaza.
Netanyahu has behaved for years with impunity, as if he will never have to answer for his actions, whether in the conduct of war or in the face of long-standing criminal charges of corruption. It is entirely right that he should face the court in The Hague, thought this is unlikely to happen.