Kenneth Roth, former executive director of Human Rights Watch, and a visiting professor at Princeton’s School of Public and International Affairs, offers an opinion for the Guardian on whether war crime charges make any difference in the conflict in Gaza.
ICC prosecutor requests arrest warrants for Netanyahu, Gallant and three Hamas leaders – video
The Israeli government is not about to surrender Netanyahu or his deputies for trial. But their travel would suddenly be limited. Although the US never joined the court, European governments have, meaning that suddenly Europe and much of the rest of the world would be out of bounds for those charged without risking arrest. It would also make it more difficult for Washington and London to pretend that their ongoing arming of the Israeli military is not contributing to war crimes.
In addition, an initial round of charges would be an implicit threat of more. As Netanyahu contemplates a potential invasion of Gaza’s southernmost city of Rafah despite 1.4 million Palestinians sheltering there, he must worry about whether more civilian deaths would spur Khan to intensify investigation of Israel’s apparently indiscriminate and disproportionate attacks on civilians. The ICC thus may live up to its potential not only to provide retrospective justice, but also to deter future war crimes. (Roth, 2024)
Barak Ravid reports two Israeli officials told Axios that Israeli Prime Minister Benjamin Netanyahu asked President Biden to help prevent the International Criminal Court from issuing arrest warrants for senior Israeli officials in connection with the war in Gaza, The officials said Netanyahu expressed his concern to Biden in a phone call on Sunday April 28, where the two leaders also discussed hostage negotiations, Israel's defense against Iran's missile attack, and the need to increase humanitarian aid to Gaza, according to a White House readout.
The ICC, which is based in The Hague, Netherlands, has been investigating possible war crimes by both Israeli forces and Palestinian militants dating back to the 2014 Israel-Hamas war.
U.S. officials said they do not have a clear indication whether the ICC is going to issue arrest warrants, but said the prosecutor's office is under pressure from NGOs and several ICC member states to do so. (Ravid, 2024)
Patrick Wintour and Julian Borger report to the Guardian that G7 diplomats argue any move now in an investigation launched in 2021 could disrupt current ceasefire talks.
Israeli politicians including the prime minister, Benjamin Netanyahu, have suggested that the ICC could press charges imminently after an investigation launched in 2021 that covers events starting in 2014. The inquiry has also been looking at Israel’s construction of settlements in occupied territory. (Wintour & Borger, 2024)
Bethan McKernan in Jerusalem reports for the Guardian on the Karim Khan application for warrants relating to alleged crimes committed during the 7 October attack and the ensuing war in Gaza. The chief prosecutor of the international criminal court has said he is seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant, a move that puts the post-second world war rules-based order to the test and presents new challenges for Israel’s western allies.
He named Yahya Sinwar, the Hamas chief in the Gaza Strip, and Mohammed Deif, the commander of its military wing, considered to be the masterminds of the 7 October assault, as well as Ismail Haniyeh, the leader of the group’s political bureau, who is based in Qatar, as wanted for crimes of extermination, murder, hostage-taking, rape, sexual assault and torture.
Netanyahu and Gallant are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. (McKernan, n.d.)
The Economist article comments that in The Hague, the International Criminal Court (ICC) is considering war-crimes prosecutions against Israeli leaders, including Binyamin Netanyahu, the prime minister, over the conflict in Gaza.
The ICC, more like a criminal court, investigates people rather than states. But it can prosecute a broader range of offences—not only genocide but also crimes against humanity and war crimes. Independent prosecutors decide whether to issue arrest warrants, but rely on states to enact them. They can charge anyone involved in crimes committed on the territory of countries that have ratified the ICC’s statute, or by their citizens. The ICC can investigate a fourth crime, of “aggression”—regarded as the “supreme international crime” that leads to other atrocities—but only if suspects are citizens of state parties. The ICC's work is thus limited because dozens of countries have declined to join the court—among them America, Russia, China, India and Israel.
A finding of genocide would be grievous to Israel, a country born from the ashes of the Holocaust. Israel is said to be threatening retaliation against the Palestinian Authority (which, in effect, granted the court jurisdiction in Gaza). Israel’s supporters in Congress call for sanctions against the ICC. Mr Khan, in turn, has demanded an end to “all attempts to impede, intimidate or improperly influence officials”.
All of which is a quandary for the Biden administration. America is not a signatory but has supported the ICC in Ukraine. Yet it says the court lacks jurisdiction in Gaza. America urges Israel to do more to protect Palestinian civilians, but has for months supplied it with weapons. On May 8th America confirmed it had suspended a shipment of heavy munitions out of concern that they might be used in Rafah, where more than 1m Palestinians are sheltering. Despite an international outcry, Israel is starting to push into that city. Talks about a ceasefire continue. (The World's Rules-Based Order Is Cracking, 2024)
The difference that pressure from International Courts and advice from traditional allies of Israel can make is to clarify to Israel that failure to attend to violations of humanitarian law, particularly in the areas of civilian famine, loss of medical services, lack of distinction of civilians, and lack of proportionality in pursuit of military objectives has consequence most immediately in loss of military support and ultimately in possible arrest of war criminals.
References
McKernan, B. (n.d.). ICC prosecutor seeks arrest warrants for Israeli PM and Hamas officials for war crimes. the Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/law/article/2024/may/20/icc-prosecutor-seeks-arrest-warrants-israeli-pm-netanyahu-hamas-officials-war-crimes
Ravid, B. (2024, April 29). Netanyahu asks Biden to help stop ICC arrest warrants over Gaza war. Axios. Retrieved May 20, 2024, from https://www.axios.com/2024/04/29/netanyahu-biden-icc-arrest-warrants-war-crimes
Roth, K. (2024, April 29). What will happen if the ICC charges Netanyahu with war crimes? | Kenneth Roth. The Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/commentisfree/2024/apr/29/netanyahu-icc-war-crimes
Wintour, P., & Borger, J. (2024, April 29). ICC urged to delay possible war crimes charges against Israel and Hamas. The Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/law/2024/apr/29/icc-possible-war-crimes-charges-israel-hamas-g7
The world's rules-based order is cracking. (2024, May 9). The Economist. Retrieved May 20, 2024, from https://www.economist.com/international/2024/05/09/the-worlds-rules-based-order-is-cracking
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