Mick Hartley

Yuan Yi Zhu, assistant professor of international relations and international law at Leiden University, in the Spectator – The ICC has destroyed its own credibility:

The International Criminal Court (ICC) has issued arrest warrants against Israeli prime minister Benjamin Netanyahu and his former defence minister Yoav Gallant for alleged war crimes and crimes against humanity (a third warrant was issued against a Hamas commander, believed to be dead). In so doing, the ICC has undermined – perhaps fatally – its own credibility, as well as prospects for a peace settlement in Gaza.

The process which led to the warrants was compromised from the very beginning, when the ICC’s Prosecutor, Karim Ahmad Khan KC, who is currently being investigated for alleged sexual misconduct (he denies the allegations), convened a ‘Panel of Experts in International Law’ to provide support for his decision to seek the warrants.

The panel’s entire membership was selected by Khan, which raised concerns about its impartiality. As Lord Macdonald, the former Director of Public Prosecutions, pointed out in a September 2024 panel discussion at Policy Exchange, at least two of the Panel’s members had publicly accused Israel of international crimes beforehand, while at least two others had personal links to the Prosecutor.

The charges themselves are legally problematic. To take but one example, Netanyahu and Gallant are accused of using starvation as a method of warfare, which would be a war crime. Yet as Dr Emanuela-Chiara Gillard, a leading expert in the law concerning civilian protection, pointed out at the Policy Exchange event, the mere existence of food insecurity in a warzone does not mean that a crime has been committed.

Many of the issues with aid delivery in Gaza are caused by self-imposed limitations by aid agencies and the United Nations, the activities of Hamas, and others. Are they liable to be prosecuted on the same charge? As Gillard points out, the war crime of starvation has never been prosecuted before, and for good reason….

Already, Israeli public opinion has understandably rallied around Netanyahu and against the Court, making a settlement of any sort less likely. What’s more, once issued, an ICC warrant cannot be withdrawn. This is in contrast with English procedure, where prosecutors have the right to discontinue proceedings if it is in the interests of justice to do so. By seemingly cornering Mr Netanyahu, the ICC gives him no other choice than to double down.

Meanwhile, the next American administration may well impose sanctions against the ICC as a result of the warrants, which would cripple its operations, so that the warrants’ supporters may only achieve a Pyrrhic victory. As Professor Richard Ekins KC of the University of Oxford writes, the lawfare against Israel only damages the credibility of the institutions that engage in it.

From that Richard Ekins October article:

In late December 2023, South Africa began proceedings in the International Court of Justice (ICJ), alleging that Israel had committed and was committing genocide against the Palestinians. 

This was an extraordinary allegation to make in the immediate aftermath of the 7 October atrocities, when Israel was using force in self-defence to attempt to rescue hostages and to degrade Hamas’s capacity to commit further acts of mass murder, rape, and hostage-taking….

The political deployment of legal processes stepped up in May, when the prosecutor of the International Criminal Court (ICC) applied for arrest warrants against the Prime Minister and Defence Minister of Israel, as well as against Hamas commanders.

This was a very ill-judged decision on the part of the prosecutor, implying an equivalence between terrorists who had openly committed mass murder and the leaders of a democratic state using force in self-defence against them.

It remains to be seen whether the ICC will issue arrest warrants. [They have now! – MH] What is clear is that in seeking these arrest warrants the prosecutor adopted an unfair process and ignored the clear limits on the ICC’s jurisdiction, which does not extend to Israeli citizens.

Israel is not a party to the Rome Statute, which established the ICC, and Palestine, which is not a state, cannot cede criminal jurisdiction over Israelis to the ICC, not least since in agreeing the Oslo Accords it disavowed any such jurisdiction.

The prosecutor’s many failings were spelled out by an expert panel of lawyers meeting at Policy Exchange last month. The failings include the prosecutor’s apparent misunderstanding of the Law of Armed Conflict and his indifference to the fundamental principle of complementarity, which means that the ICC only has a role when domestic legal remedies are effectively unavailable.

As we now know, South Africa received a massive financial lifeline from Iran and Qatar – two regimes notorious for their hostility toward Israel and support for Hamas – just after filing their case against the Jewish state.

Meanwhile these international organisations continue in their particular targeting of Israel, while ignoring much greater injustices elsewhere….