International law has spoken once again. Israeli Prime Minister Benjamin Netanyahu, as well as former Defence Minister Yoav Gallant, are now wanted men. The International Criminal Court has, for the first time in its 22-year history, issued arrest warrants for democratically elected politicians.
Netanyahu, accused of starvation and directing attacks against civilians, has described the warrants as “antisemitic” and a “dark day in the history of humanity”. Keir Starmer has nonetheless effectively endorsed them.
It’s hard, though, to see how the warrants stand up as law. Israel is not a member of the ICC and Palestine, which along with human rights luminaries South Africa, Bangladesh, Bolivia, Comoros, and Djibouti petitioned for the warrants, is not recognised as a state by many. Meanwhile, the Rome Statute that governs the ICC states that any member cannot affect “the rights and privileges” of a third party that is not a signatory.
It’s unsurprising, then, that the Israelis are enraged. The particularly egregious crime of starvation, according to the Statute, relates to “depriving [civilians] of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions”. To prove this, the court must show that Israel acted with the deliberate intent of starving civilians. It’s hard to see how it can given Israel permits aid into Gaza daily. Food insecurity is not an indication of deliberate starvation; nor can Israel do anything to mitigate the hijacking of aid supplies by Hamas.
Yet more enraging, as far as the Israelis are concerned, the ICC is only supposed to intervene as a court of last resort when a nation is “unwilling or unable” to investigate alleged crimes itself. As Dr Yuan Yi Zhu, a fellow at Policy Exchange, points out: Israel’s “fiercely independent” prosecutors weren’t allowed the opportunity to investigate themselves before the ICC issued the warrants.
And the warrants aren’t only legally disreputable, they’re politically cretinous. They’re a gift to Netanyahu — who was reviled by many Israelis even before the negligence that allowed October 7 to happen. Now though, in the face of this type of external attack, the country is rallying behind him. The result? He will almost certainly feel emboldened. More military operations, not fewer, are likely in Gaza and Lebanon. And you can forget any idea of a negotiated peace — at least for the moment. If Palestine is putting out arrest warrants on Netanyahu, he’s hardly going to be making deals with them. It’s a colossal own goal.
All the more so given that America is not a member of the ICC and has an already antagonistic relationship with the organisation. Remember that back in September 2020, following the ICC’s decision to open an investigation into war crimes by US military personnel in Afghanistan, Trump used an executive order to sanction the prosecutor, Fatou Bensouda, and another senior official, Phakiso Mochochoko. Bensouda eventually put the investigation on hold, and under Joe Biden, the US quietly withdrew the sanctions.
While Biden has dismissed the latest warrants as “outrageous”, American Senator Lindsey Graham has made clear that the incoming administration’s thoughts on them are even more robust. “If you are going to help the ICC, as a nation, enforce the arrest warrant against Bibi and Gallant… I will put sanctions on you as a nation,” he warned. “You’re gonna have to pick the rogue ICC versus America…We should crush your economy because we’re next,” Graham said. “Why can’t they go after Trump or any other American president under this theory?”
Certainly, the ICC’s choice of targets might be considered erratic. It never tried Syria’s Bashar al-Assad, for example, despite his use of chemical weapons against his own people. It claims (with levels of chutzpah usually associated with Israelis) that it has no jurisdiction because Syria is not in the ICC. And yet the Syrian Observatory for Human Rights estimates the death toll from that war to have been 613,000 with an additional 55,000 civilians believed to have died of torture in government-run prisons.
So if it’s all legally suspect and politically obtuse: why did the ICC do it? To say it is antisemitism alone is too simplistic. More credible is the idea that, as one international law expert told me, the ICC must have a diversity of judges, so it has a lot of mediocre people from countries across the world where legal standards are poor. “They just aren’t very good lawyers. Many of its judges are from the global south so from countries not favourable to Israel. Plus, if you are a human rights lawyer it’s taken for granted that you are anti-Israel.”
There are many, especially on the Right, who claim that this proves that international law is an ass — or worse that it’s a “fiction”. But this is wrong: we need it to govern maritime rights and arbitrate on cross-border trade disputes. But on fundamental questions of national self-defence, and the defence of civilisation undertaken by people answerable to electorates, the idea that an institution such as the ICC has the essential competence or legitimacy to be the ultimate arbiter is massively stretching the power that international law should have.
A couple of days after the warrants were issued, I watched a clip from Channel 4 News in which human rights lawyer Geoffrey Robertson, was pronouncing on the warrants. No one ever expected Serbian leader Slobodan Milosevic to turn up in the dock in the Hague, but in the end his own people handed him over, he observed. Might not the same happen to Netanyahu when he “fell from power”?
His rhetoric only served to highlight the disconnect that pervades this world. For all the problems Israelis have with Netanyahu, it is fundamentally unserious to believe that they will ever throw him under the bus for fighting the terrorists who killed over a thousand of their fellow citizens and dragged hundreds more off to Gaza, no matter how much his actions have annoyed Djibouti.
The clash here is not just of political tribe or legal debate; it is of a fundamental understanding of reality. On the one hand, we have Robertson, the ICC and Keir Starmer (who privately refers to IHL as his “north star”) who believe that the bloody and chaotic practice of war can be ordered and adjudicated upon by bureaucrats in Holland.
On the other, we have Vladimir Putin and his war of conquest with its razed towns and cities, and Hamas’s psychopathic — and mediatised — barbarities. If the ICC’s vision ever had any basis in fact, it died in Gaza and eastern Ukraine, as I have seen first hand. This is the world we are now living in, and it will not yield to delusion, or legal sophistry.
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Source: UnHerd Read the original article here: https://unherd.com/