The ICC’s credibility is hanging by a thread

A sprinkling of hope appeared as soon as the Rome Statute of the International Criminal Court was implemented in 2002, which brought the era of impunity for war crimes, crimes against humanity, and genocide to an end.

The court ignores calls to action quickly against those responsible for the widespread atrocities in Gaza twenty-two years later, weighing its international legitimacy. Israeli Prime Minister Benjamin Netanyahu, his defense minister Yoav Gallant, and three Hamas leaders were asked by ICC Prosecutor Karim Khan to request in May that the court issue arrest warrants. Despite the rise in the number of fatalities and the destruction of Gaza as a result of Israel’s ongoing genocidal violence, the ICC is still waiting to decide.

In the legal circles of the victorious powers, the idea of a permanent international tribunal to prosecute war crimes first surfaced after World War I, but it never materialized. After World War II, which killed an estimated 75-80 million people, several concepts of “justice” were floated.

At the 1943 Tehran Conference, during which the heads of state of the USSR, the United States and Great Britain met to discuss war strategy, Soviet Union leader Joseph Stalin suggested that at least 50, 000 of the German commanding staff must be eliminated. US President Franklin D Roosevelt replied, reportedly jokingly, that 49, 000 should be executed. Winston Churchill, the prime minister of the UK, advocated for the individual responsibilities of trialing war criminals.

Eventually, the allies established the Nuremberg and Tokyo military tribunals, which indicted 24 German and 28 Japanese military and civilian leaders, respectively. Because neither the leaders or military leaders of the Allied powers were charged with crimes against them, this was ultimately victors’ justice. In the end, these tribunals were, arguably, a symbolic attempt at trying those who waged wars of aggression and committed genocide.

No similar international effort was made to prosecute war criminals during the decades that followed. For instance, the mass murderers of people who rebelled against colonial and imperial powers were never brought to justice.

The UN Security Council established two ad hoc tribunals in 1991-1995 and 1998-1999 to prosecute crimes committed during the genocide in Rwanda and in 1994, and this was followed by the resumption of international justice in the 1990s. While these tribunals served their purposes, some questioned their efficacy, financial costs, and independence, given that they were set up by a Security Council dominated by Western powers.

Here again, the notion of victors ‘ justice hovered particularly over the Yugoslavia tribunal, as it didn’t investigate, let alone prosecute, NATO officials for the seemingly illegal 1999 bombing campaign against the Federal Republic of Yugoslavia.

In accordance with the 1948 Convention on the Prevention and Punishment of Genocide, the Rwanda tribunal failed to conduct an investigation into the possible involvement of Western powers in the genocide and/or their failure to stop or stop it.

In this context, it was anticipated that those who commit war crimes, crimes against humanity, and genocide would be brought before the new court, regardless of which side they were in a conflict, as a result of the signing of the Rome Statute in 2002.

In 2018, the crime of aggression – defined as the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a violation of the Charter of the United Nations – was added to the court’s jurisdiction.

But it didn’t take long for the high hopes for the ICC to be frustrated. A few signatories of the Rome Statute formally declared that they no longer wanted to be State Parties, thereby absolving themselves of their obligations. Among them were Israel, the United States and the Russian Federation. Other major powers, like China and India, did not even sign the statute.

The ICC’s credibility was undermined by the fact that all 46 of its suspects were Africans, including sitting heads of state, during its first 20 years of operation.

The court indicted three pro-Russian officials from the breakaway region of South Ossetia on charges of war crimes during the 2008 Russia-Georgia war for the first time in June 2022. Just 29 days after Chief Prosecutor Khan requested an arrest warrant for Russian President Vladimir Putin, the court made the sensational move in March 2023.

The decision was, on merit, rather puzzling. The warrant was issued for Putin’s alleged “individual criminal responsibility” for the “unlawful deportation of population (children) and the “illegal transfer of population (children) from occupied areas of Ukraine to the Russian Federation despite the lethality of the war raging in Ukraine since February 2022 and reported attacks on civilian targets.

The UN Security Council’s current president’s arrest warrant could have signaled its willingness to travel where the evidence would lead, in and of itself. Some, however, saw the court’s decision as further evidence of the influence of its Western supporters given the obvious psychological conflict between the West and Russia.

If the court had followed the overwhelming body of documented war crimes and crimes against humanity committed against Palestinians, this perception might have been diminished.

In 2018, the State of Palestine submitted a referral to the ICC “to investigate, in accordance with the temporal jurisdiction of the court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine”. The court decided in March 2023 that it could launch an “investigation into the State of Palestine” after five years.

South Africa and five other signatories referred the ICC to the ICC in November 2023, and Chief Prosecutor Khan confirmed that the investigation is still ongoing and extends to the escalation of hostilities and violence since the attacks that occurred on October 7, 2023.

Despite having a ton of compelling evidence of their personal responsibility for the war crimes committed in Gaza, Khan recommended to the court’s pre-trial chamber for no less than seven months. He also made the same suggestion about three Hamas figures, two of whom Israel later assassinated.

Arguably, it took time and courage to seek the arrest of Netanyahu, who has the support of the US and of Mossad, Israel’s infamous intelligence agency specialising in assassinations abroad. In May, the British newspaper The Guardian revealed that Khan’s predecessor, Fatou Bensouda, had been threatened “in a series of secret meetings” by Yossi Cohen, the then-head of Mossad and “Netanyahu’s closest allies at the time”.

Cohen allegedly told Bensouda to “leave a war crimes investigation” and that she should “help us and let us take care of you.” You don’t want to be involved in activities that could endanger your safety or that of your family.

One can only imagine the pressures and threats Khan faced or feared if she had been threatened and blackmailed for only investigating allegations of war crimes committed before the current genocidal war.

The pre-trial chamber’s three sitting judges must now decide whether to issue the warrants once he has completed his duties. If Netanyahu and Gallant aren’t immediately given the same threats as Bensouda, they must be acutely aware that the very credibility of the ICC also hangs in the balance. The glaring and extraordinary amount of evidence of war crimes, crimes against humanity, genocide, and crime of aggression is such that were they to abscond from their responsibility, they would ring the death knell of the ICC.

Source: Aljazeera