When the Rome Statute of the International Criminal Court entered into force in 2002, there was palpable hope that the era of impunity for war crimes, crimes against humanity and genocide was coming to an end. END.
Twenty-two years later, the Court’s international legitimacy is at stake as it ignores calls to act quickly against those responsible for mass atrocities in Gaza. In May, ICC prosecutor Karim Khan asked the court to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Gallant, as well as three Hamas leaders. The ICC has yet to make a decision despite the growing death toll and destruction in Gaza amid continued genocidal violence from Israel.
The idea of a permanent international tribunal to prosecute war crimes first emerged in the aftermath of World War I in the legal circles of the victorious powers, but never came to fruition. After World War II, which killed between 75 and 80 million people, several concepts of “justice” were launched.
At the Tehran Conference of 1943, at which the heads of state of the USSR, the USA and Great Britain met to discuss war strategy, the Union leader Soviet leader Joseph Stalin suggested that at least 50,000 of the German commanders needed to be eliminated. US President Franklin D. Roosevelt responded, apparently jokingly, that 49,000 people should be executed. British Prime Minister Winston Churchill advocated for war criminals to be tried for their individual responsibilities.
Ultimately, the Allies established the Nuremberg and Tokyo Military Tribunals, which indicted 24 German and 28 Japanese military and civilian leaders, respectively. But it was essentially victor’s justice, as none of the leaders or military commanders of the Allied Powers were prosecuted for their war crimes. Ultimately, these tribunals were arguably a symbolic attempt to judge those who waged aggressive wars and committed genocide.
In subsequent decades, no such international effort was made to bring war criminals to justice. Thus, for example, the mass murderers of the people who rose up against the colonial and imperial powers were never tried.
The notion of international justice was revived in the 1990s when the United Nations Security Council established two ad hoc tribunals to prosecute crimes committed during the 1991-1995 and 1998-1999 wars in the former Yugoslavia and during of the 1994 Rwandan genocide. Although these tribunals achieved their goal, some have questioned their effectiveness, financial costs and independence, given that they were created by a Security Council dominated by Western powers.
Again, the notion of victors’ justice hung particularly over the tribunal for Yugoslavia, as it failed to investigate, let alone prosecute, NATO officials for the apparently illegal 1999 bombing campaign against the Federal Republic of Yugoslavia.
Regarding the tribunal for Rwanda, the latter did not investigate the possible complicity of Western powers in the genocide and/or their inability to prevent or stop it in accordance with the 1948 Convention for the Prevention of Genocide. and the repression of genocide.
In this context, the signing of the Rome Statute in 1998, which entered into force in 2002, raised the hope that those who commit war crimes, crimes against humanity and genocide will be prosecuted by the new Court, whatever their side. in a conflict.
In 2018, the crime of aggression – defined as the planning, preparation, initiation or execution of an act of aggression which, by its nature, gravity and scale, constitutes a violation of the Charter of the Nations United States – was added to the jurisdiction of the Court. .
But it did not take long for the high hopes placed in the ICC to be dashed. Some signatories to the Rome Statute have officially declared that they no longer intend to become state parties, thereby canceling their obligations. Among them were Israel, the United States and the Russian Federation. Other major powers, such as China and India, have not even signed the statute.
The fact that the 46 suspects it sought to prosecute in the first 20 years of its existence were all Africans, including sitting heads of state, also did not improve the ICC’s credibility.
This trend was broken for the first time in June 2022, when the court indicted three pro-Russian officials from the breakaway region of South Ossetia, accused of committing war crimes during the Russo-Georgian War of 2008. A year later, in March 2023, the court made the sensational decision to issue an arrest warrant for Russian President Vladimir Putin, just 29 days after Chief Prosecutor Khan requested it.
The decision was, in essence, rather confusing. Despite the lethality of the war raging in Ukraine since February 2022 and the reported attacks on civilian targets, the arrest warrant was issued against Putin’s alleged “individual criminal responsibility” for “illegal deportation of population (children ) and that of illegal population transfer (children). ) from the occupied areas of Ukraine to the Russian Federation.”
In itself, the arrest warrant for the sitting president of a permanent member of the UN Security Council could have signaled the independence of the ICC and its willingness to go wherever the evidence led it. But given the open psychological warfare between the West and Russia, some saw the court’s decision as further evidence of the influence of its Western supporters.
This perception could have been alleviated if the court had demonstrated good faith in following the overwhelming evidence of war crimes and crimes against humanity committed by Israel against the Palestinians.
In 2018, the State of Palestine submitted a referral to the ICC “to investigate, consistent with the temporal jurisdiction of the Court, past, ongoing and future crimes within the jurisdiction of the Court, committed in all parts of the territory of the State of Palestine. “. It took the court five years to determine, in March 2023, that it could open an “investigation into the situation in the State of Palestine.”
In November 2023, South Africa and five other signatories again referred the matter to the ICC, after which Attorney General Khan confirmed that the investigation launched in 2023 “remains ongoing and extends to the escalation of hostilities and of violence since the attacks of October 7. 2023.”
It took Khan no less than seven months to recommend to the court’s pre-trial chamber that arrest warrants be issued for Netanyahu and Gallant, despite an impressive amount of evidence of their personal responsibility for war crimes in Gaza. . He also made the same recommendation regarding three Hamas leaders, two of whom were subsequently assassinated by Israel.
It undoubtedly took time and courage to secure the arrest of Netanyahu, who enjoys the support of the United States and Mossad, the infamous Israeli intelligence agency specializing in assassinations abroad. In May, the British newspaper The Guardian revealed that Khan’s predecessor, Fatou Bensouda, had been threatened “during a series of secret meetings” by Yossi Cohen, then head of Mossad and “Netanyahu’s closest allies at home.” era “.
Cohen tried to coerce Bensouda “to drop a war crimes investigation” and “reportedly told him, ‘You should help us and let us take care of you. You do not want to engage in activities that could compromise your safety or that of your family.
If Bensouda was threatened and blackmailed for simply investigating allegations of war crimes committed before the current genocidal war, one can only understand the pressures and threats, real or perceived, that Khan faced or feared. .
Now that he has fulfilled his duty, it is up to the three sitting judges of the pre-trial chamber to decide whether or not to issue the arrest warrants. It is unclear whether they face the same threats as Bensouda, but they must be acutely aware that the very credibility of the ICC is also at stake if arrest warrants for Netanyahu and Gallant are not issued without further delay. The glaring and extraordinary amount of evidence of war crimes, crimes against humanity, genocide and crimes of aggression is such that if they shied away from accountability, they would sound the death knell for the ICC.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Tel Aviv Tribune.