On November 21, the Pre-Trial Chamber of the International Criminal Court (ICC) announced that it had issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, his former defense minister Yoav Gallant and the commander of the military branch of Hamas Mohammed Diab Ibrahim al-Masri, alias Deif, who Israel says was killed in combat.
It took the Pre-Trial Chamber six months to make a decision on Prosecutor Karim Khan’s arrest warrant request, and it took no less than eight months after October 7, 2023 to file the motions for the arrest warrants. stop. Before that, it took almost seven years for Khan’s predecessor, Fatou Bensouda, to open an investigation into alleged Israeli war crimes in Palestine since 2014. Given the degree and scale of war crimes in Gaza before and after October 7, 2023, the slowness of the ICC is difficult to understand or accept.
The Pre-Trial Chamber said it had “reasonable grounds to believe that Mr. Netanyahu and Mr. Gallant bear criminal responsibility for the war crime of using starvation as a method of warfare.”
Judging by the space given to this accusation in the ICC press release, issues of humanitarian aid appear to be the main charges against Netanyahu and Gallant. But given the death toll – which could reach 186,000 people – and the devastation of Gaza’s overall infrastructure, particularly medical facilities and schools, it is troubling that “the Chamber concluded that the evidence provided by the Prosecution only allowed him to draw conclusions.” on two incidents characterized as attacks intentionally directed against civilians. Just two incidents?
On the other hand, the Pre-Trial Chamber was also able to conclude that Deif, the elusive Hamas commander, was “responsible for crimes against humanity of murder; extermination; torture; and rape and other forms of sexual violence; as well as war crimes of murder, cruel treatment and torture; take hostages; attacks on personal dignity; and rape and other forms of sexual violence.”
It should be noted that the evidence provided by the prosecution made it possible to identify such a list of crimes, and in particular that of “extermination” defined in article 7.2.b. of the Rome Statute as “including the intentional imposition of conditions of life, including the deprivation of access to food and medicine, intended to bring about the destruction of part of a population”.
It is striking that the term “extermination” is not mentioned in the charges against Netanyahu and Gallant, despite the fact that on January 26 the International Court of Justice concluded that it was plausible that Israel’s actions could constitute a genocide.
Is this another case of double standards or do different standards of burden of proof apply? We do not know because the mandates are “secret”, but this question nevertheless remains to be asked.
On the positive side, in itself, the ICC’s decision is historic, because for the first time ever, it has issued arrest warrants against nationals – politically speaking – of a Western country. Intense pressure and threats from Israel, its friends and its protector-in-chief, the United States, did not prevent the two top members of Israel’s war cabinet from becoming fugitives.
Of course, the prospect of seeing Netanyahu and Gallant in the dock is virtually nil. For now, those seeking a modicum of justice would find comfort in the symbolism carried by the international warrants against the two Israeli leaders.
However, although justice will not be served soon enough to end Israel’s genocidal aggression, a major threshold has been crossed: a powerful signal has been sent to all past and future perpetrators of crimes against Palestinians. under occupation: from the Israeli president who declared that there were no innocent Palestinians in Gaza, in the eyes of reckless ministers encouraging genocide; to generals ordering the bombing of women, infants, hospitals and schools, to TikTok-savvy soldiers gleefully carrying out war crimes.
The message is that these arrest warrants are a harbinger of the end of impunity for international crimes committed by Israel. Not because the ICC intends to prosecute such crimes, which are simply too numerous for an underfunded court. But rather because the historic decision of the ICC will give new impetus to the prosecution of war crimes under universal jurisdiction and erga omnes obligations.
These are obligations to the international community to prosecute individuals suspected of war crimes, crimes against humanity, genocide and torture, even if the prosecuting jurisdiction has no direct connection to the crimes. imputed.
In this regard, it is appropriate to recall a historic case in which universal jurisdiction was invoked. A quarter of a century after committing horrific crimes following the CIA-backed 1973 coup in Chile, General Augusto Pinochet was arrested in a London hospital by Scotland Yard after Spanish judge Baltasar Garzon had issued an international arrest warrant against him.
After a 503-day legal battle, which ended with the Home Secretary canceling, on “humanitarian grounds”, a British court’s decision to grant the extradition request from Spain, Pinochet, 83, was released and flown back to Chile. Garzon’s pioneering initiative nevertheless constituted an important step in international criminal law, as it successfully tested the applicability of the principle of universal jurisdiction in matters of gross human rights violations.
Similarly, former US President George W. Bush canceled a visit to Switzerland in 2011. Officially, it was because of planned protests following his admission that he had authorized the use of simulated drowning against foreign detainees. But a “Pinochet moment” weighed heavily in the cancellation of the trip. Amnesty International warned Swiss authorities that “an investigation (into Bush’s alleged crimes) would be mandatory under Switzerland’s international obligations if President Bush entered the country.”
Senior Israeli officials, such as former Prime Minister Ehud Olmert, former Deputy Prime Minister and Minister of Foreign Affairs and Justice Tzipi Livni, as well as former Deputy Prime Minister Moshe Ya’alon have canceled their trips to United Kingdom, Switzerland or Belgium for fear of arrest in connection with alleged war crimes.
These examples, along with past and active cases prosecuted in various courts under the principle of universal jurisdiction, suggest that this relatively new concept in international criminal law is making progress.
Ironically, although the roots of “universal jurisdiction” lie in connection with piracy on the high seas, it was Israel that was the first to invoke this principle in the modern era for his kidnapping in Argentina and the trial that followed. followed in 1961 by the famous senior Nazi official. officer Adolf Eichmann.
Now that an arrest warrant has been issued for their longest-serving prime minister, boarding a plane from Tel Aviv will become a risky proposition for Israelis suspected of war crimes, if they realize that they could be arrested upon arrival.
For Netanyahu himself, his plane can still take off, but it remains to be seen where it will be able to land and in which countries it will be able to use the airspace. He may dream of a “Greater Israel” and a beach house on the coast of Gaza, but his own world has shrunk considerably now that he is a fugitive.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Tel Aviv Tribune.
