A valid warrant or false equivalence The Statesman 26 Nov 2024
In Sept 2020, the US sanctioned the then International Criminal Court (ICC) prosecutor, Fatou Bensouda, as also restricted issuance of visas for ‘certain ICC officials’ solely because they were ‘involved in the ICC’s efforts to investigate US personnel in Afghanistan. The ICC had indicated its intent to probe war crimes in Afghanistan. There were multiple reports of US troops being involved in them. Nothing happened, no US individual was charged. Its pressure forced the ICC to back down.
In early May this year, the ICC announced that it was investigating crimes against humanity involving Israeli leaders including its PM Benjamin Netanyahu and since removed defence minister, Yoav Gallant. In response, 12 US Republican senators issued a letter threatening members of the ICC with sanctions in case it acted.
They wrote, ‘Target Israel and we will target you. These arrest warrants would align the ICC with the largest state sponsor of terrorism and its proxy. To be clear, there is no moral equivalence between Hamas’s terrorism and Israel’s justified response.’ Israel and the US have refused to accept the jurisdiction of the ICC. This threat from US Senators resulted in ‘Human Rights First’ organization writing an open letter to President Biden requesting him to oppose them. Nothing happened.
In Mar 2023, the ICC issued arrest warrants for Russian President Putin accusing him of war crimes in Ukraine. In response, President Biden commented, ‘He’s clearly committed war crimes.’ Vice President Kamala Harris mentioned that those involved will be ‘held to account.’ She meant that war crimes can only be initiated against non-US allies. Russia denounced the decision of the ICC.
The ICC recently issued arrest warrants against Netanyahu, Yoav Gallant and the Hamas military leader Mohammed Deif. Deif was reportedly killed in an air strike by Israel, though the same has not been officially announced by Hamas. While Israel is not a member of the ICC, Palestine is. ICC ruled in 2021 that Palestine is a state and hence it has jurisdiction over the case based on ‘crimes committed in territories of a member state.’
The ICC warrant mentioned, ‘The Chamber considered that there are reasonable grounds to believe that both individuals (Netanyahu and Gallant) intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024.’
The ICC Prosecutor behind the issuance of the warrants, Karim Khan, is himself facing sexual harassment investigations. Inputs on Khan were possibly leaked by Israel’s MOSSAD intending to discredit him and the warrant before they were issued.
The US National Security Council spokesperson mentioned, ‘The US has been clear that the ICC does not have jurisdiction over this matter. In coordination with partners, including Israel, we are discussing next steps.’ The incoming US National Security Advisor, Mike Waltz, commented, ‘you can expect a strong response to the antisemitic bias of the ICC and UN come January.’ It was Trump who had threatened ICC officials in 2020.
The US follows a different approach when it comes to itself and its allies. However, the same is not the case with others. Hamas and the Palestinian Authority, as expected, praised the issuance of the warrant.
In contrast to the US, most European Nations have accepted ICC’s jurisdiction and stated they would adhere to its directions. Statements indicating that they will arrest Netanyahu, if he visits, have been issued from Italy, France, Netherlands and Canada, amongst others. The EU’s foreign policy chief, Josep Borrell, said that arrest warrants are binding for all EU member states. However, while positive statements are expected, implementing them is another story.
The ICC has 124 members on whom it depends for implementing its directions. India is not a member. The warrant once issued cannot be recalled under pressure from other states including the US. Hence, it will stand unless set aside by legal procedures, which may not happen in the case of Netanyahu. However, while arrest is unlikely it will remain an embarrassment and restrict his travel.
Apart from Netanyahu and Putin, all other leaders against whom ICC warrants have been issued thus far are from Africa. These include Omar Hassan al-Bashir of Sudan, Muammar el-Qaddafi of Libya, William Ruto, the current President of Kenya and Laurent Gbagbo of Ivory Coast. Ruto’s warrant was cancelled in 2016.
Israel was expected to reject the warrant and it did. In a message on X (formerly twitter) Netanyahu mentioned, ‘The antisemitic decision of the international court in The Hague is a modern Dreyfus trial, and it will end the same way. No outrageous anti-Israel decision will prevent us, and it will not prevent me from continuing to defend our country in every way.’
The warrant does not prevent leaders of ICC states from meeting Netanyahu in neutral nations or in Israel. It will have no impact on supply of weapons or diplomatic support to Israel. Nor will it impact Israel’s ongoing operations.
Further, the decision to arrest is dependent on states. Putin made a visit to Mongolia, which is an ICC member, post issuance of warrant, where he received a red-carpet welcome. No nation commented on Mongolia’s inaction. Hence, while nations are duty bound to adhere to the demands of the ICC, the final decision rests with the state itself.
South Africa had also not implemented the ICC warrant when Sudanese leader, Omar al-Bashir, visited it in 2015. Hungary and the Czech Republic, both members of the EU and ICC, as also close allies of Israel, have already refused to implement the warrants.
Because South Africa is a member of the ICC, President Putin did not attend the BRICS summit there last year. It is unlikely that Putin would have been detained, however visiting the country could have been an embarrassment to South Africa and its government. Hence, he avoided. He is scheduled to visit India next year, which is not a signatory to the Rome declaration.
At the end of the day, as with most earlier cases, there would be no arrests, while restricting possible travel of Netanyahu. However, issuance of warrants would only be a moral victory for the Palestine Authority and Hamas.
About the Author
Maj Gen Harsha Kakkar
Retired Major General Indian Army