Is Israel above international law? Let’s put the ICC warrants into perspective
Nov 26, 2024
On 19 November, the ICC issued warrants for the arrest of Benjamin Netanyahu and former Defence Minister Yoav Gallant, in response to the request by the Prosecutor of the ICC, Karim Khan KC, back on 20 May.
The war crimes and crimes against humanity alleged by Khan included extermination, constituted by starvation as a method of warfare, torture, persecution, and other inhumane acts as crimes against humanity.
Israel and the pro- Israel lobby reacted in the manner that one might have expected – the ICC is motivated by antisemitic hatred of Israel; and, per Joe Biden, the ICC’s action is ‘outrageous’. Such comment by the current US President does not sit well with the fact that a fifteen member bench of the ICJ has already found in a preliminary ruling, that Israel’s actions in Gaza amount to “plausible” genocide.
US politicians, and officials, have even gone so far as to threaten sanctions against the Court. The incoming leader of the US Senate, John Thune, who will assume that office when President-Elect Trump takes office, has foreshadowed legislation permitting such sanctions if the ICC proceeds. The incoming National Security advisor Mike Waltz has said: “You can expect a strong response to the antisemitic bias of the ICC and UN come January”. Readers may recall that between 2019 and 2020 the previous Trump administration imposed visa restrictions and sanctions on the previous ICC Prosecutor, Fatou Bensouda, when she opened a formal investigation into alleged war crimes in both the occupied Palestinian Territories and by US military personnel in Afghanistan.
But let’s get things into perspective. The ICC was established by the Rome Statute of the ICC, done at Rome in 1998, and coming into force in 2002. 124 countries are States parties to the Statute. Perhaps of most significance to Australians are, Australia itself, Canada, France, Germany, Greece, Ireland, Italy, Japan, New Zealand, Republic of Korea, South Africa, Spain, State of Palestine and the United Kingdom. Significant countries which are not signatories are the United States, China, Israel, Russia and Ukraine.
The State of Palestine, as a permanent observer state at the UN, was accepted as a signatory in 2015 at the request of the Palestinian Authority. In 2021 the ICC decided that its territorial jurisdiction extended to Gaza and the West Bank, because of that acceptance.
As stated above, the office of Prosecutor is currently occupied by Karim Khan KC, i.e. King’s Counsel, and hence not surprisingly, from the English bar. Since he sought the warrants, Khan has been the subject of anticipated attack, commencing with an allegation he harassed a female staff member. The alleged victim has filed no complaint. As an aside, it is not inappropriate to record a little of Khan’s background, which might throw some light on his reputation. Khan’s uncle and mentor was Sir Mohammed Zafrulla Khan, a Pakistani jurist and diplomat who presided over the International Court of Justice, and also served as the President of the UN General Assembly. Karim was 15 years of age at the time of his uncle’s passing, but no doubt his early life, growing up and educated in Great Britain, was influenced by his uncle’s position.
A potential crime might be referred to the Prosecutor by a State Party to the Rome Statute, or the Security Council. An investigation may be initiated by the Prosecutor him or herself. The Prosecutor’s role is to assess, and if satisfied that there is a case to answer, to seek approval from a panel of judges to lay a charge. The laying of a charge does not, however, mean that a trial is inevitable. A defendant cannot be tried in absentia. The defendant must be brought to the court in The Hague or submit him or herself to the court’s jurisdiction.
The ICC lacks jurisdiction unless the accused was a national of a state party to the Rome Statue, or unless the crime was committed on a territory of a state party. Jurisdiction is said to arise in this instance because Gaza is recognised by the Court as part of the State of Palestine, as explained, a signatory to the Rome Statute. By issuing the warrants the ICC has clearly accepted that it has jurisdiction. In its ruling, the court explicitly rejected arguments made by Israel and the US that the ICC does not have jurisdiction over Israel.
That is not to say that the US and Israel, and the defendants themselves, will not, if the occasion arises, seek to challenge that jurisdiction. Proceedings are however unlikely to occur because the accused will either not leave Israel, or if they do, go only to a state not under an obligation under the Rome Statute to apprehend the accused and convey him to the Hague to be dealt with, e.g. the US. The restraint on travel of the two is not, however, insignificant. Canada, and several EU states, including France, Belgium, and the Netherlands have already said that they would abide by the rulings of the court. One would like to think that Australia would take a similar position.
As for the US, its position is just further evidence of its diminishing standing in the community of nations. Consider what it is saying. It and its principal ally, Israel, are above international law, and indeed, above the rest of the world. That is not a message that the rest of the world, including Australia, should accept.
Paul Heywood-Smith is an Adelaide SC of some 20 years. He was the initial chairperson of the Australian Friends of Palestine Association, an incorporated association registered in South Australia in 2004. He is the author of The Case for Palestine, The Perspective of an Australian Observer published by Wakefield Press in 2014.
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