At first glance, the announcement on May 20 by International Criminal Court (ICC) prosecutor Karim Khan that he is seeking arrest- warrants for Israeli Prime Minister Benjamin Netanyahu along with Defense Minister Yoav Gallant and Hamas leaders, including Yahya Sinwar, seems to have pleased the countless Left/Liberal supporters of Palestine all over the world.
However, on closer scrutiny, Khan and his panel of six experts—five of them, incidentally, happen to be his co-nationals, all British—seem to have done an enormous favor to the Israeli Prime Minister. Netanyahu, whose days were believed to be numbered in Israeli politics, is now a much stronger man, garnering support even from his political detractors.
Besides, Khan’s zeal in punishing the Israeli leaders’ “war crimes” in Gaza has seemingly revitalized Israel’s debilitating military and political ties with the United States.
And, above all, Khan may be further exposing the limitations of his own organization, the ICC, in the process.
Before Khan’s announcement, retired General Benny Gantz, a leading member of Netanyahu’s war cabinet, had threatened to quit the government if the Prime Minister did not produce a post-war template for how Gaza would be governed. But now, he is defending Netanyahu.
“Drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror to leaders of a blood-thirsty terror organization (Hamas) is a deep distortion of justice and blatant moral bankruptcy,” Gantz wrote on X.
Even Israeli opposition leader Yair Lapid, Netanyahu’s bitterest political adversary, has not hesitated to condemn Khan’s announcement as a “disaster.” He wrote on X that “The ICC arrest warrants are a complete moral failure. We cannot accept the outrageous comparison between Netanyahu and Sinwar, between the leaders of Israel and the leaders of Hamas.”
In other words, Khan now seems to have made most Israelis believe that he is targeting Israel and not just Netanyahu.
And that is precisely the perception that the Biden Administration and the U.S. Congress appear to be sharing too. Biden thinks that it was “outrageous” to apply for arrest warrants. There was “no equivalence – none – between Israel and Hamas,” he said.
Secretary of State Antony Blinken has said that the Biden administration is willing to work with Congress on potential sanctions against the ICC as its prosecutor seeks arrest warrants for senior Israeli officials. He told a Congressional hearing that he was “committed” to taking action against the “profoundly wrong-headed decision.”
Besides, House Speaker Mike Johnson has said that he is moving ahead with an invitation to Prime Minister Netanyahu to address Congress. “Congress is reviewing all options, including sanctions, to punish the ICC and ensure its leadership faces consequences if they proceed,” Johnson said in a statement. As it is, Rep. Chip Roy (R-Texas) has introduced a bill that would “sanction ICC officials who investigate U.S. citizens or allies.”
There are two reasons that Americans find problematic with Khan’s decision. For one, his request to issue warrants against the Israeli Prime Minister “could jeopardize” efforts to reach a ceasefire in Israel’s operations in Gaza. This line of argument seems to have takers in the ruling establishments of the United Kingdom and Germany, two allies of America.
For another, there are serious legal problems with the ICC’s warrant calls against the Prime Minister and Defense Minister of a country that is not a party to the Court. Israel is not a member of the ICC and hence cannot come under its jurisdiction, it is argued.
The argument goes that the ICC “cannot stick its nose in the business of countries that have an independent, legitimate, democratic judicial system.” Thus, a warrant against Netanyahu is being viewed as “not law but politics.”
All told, it is a well-established principle of international law that an international tribunal cannot enforce its jurisdiction over non-party states. Countries that are not members of the ICC are only subject to its jurisdiction if they accept it ad hoc or are referred to the ICC by the UN Security Council. And if one goes by these criteria, Israel does not come under the jurisdiction of the ICC.
It may be noted that headquartered at The Hague, the Netherlands, the ICC is a product of the Rome Statute of 1998, emerging out of a conference attended by 160 countries. At the moment, 123 countries happen to be parties to the Rome statute. About 40 (forty) countries, such as China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey, have never been parties to the Rome statute.
Some countries had signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, Syria, and the United States. Two countries have withdrawn from the ICC – Burundi in 2017 and the Philippines in 2019.
The ICC is not part of the United Nations, which has its own court, the International Court of Justice, which deals with disputes between states and is also located in The Hague.
The ICC prosecutes individuals, not groups or States. Any individual who is alleged to have committed crimes within the jurisdiction of the ICC may be brought before the ICC. In fact, the Office of the Prosecutor’s prosecutorial policy is to focus on those who, having regard to the evidence gathered, bear the greatest responsibility for the crimes and do not take into account their official positions, even if they are Heads of State or Government, minister or parliamentarians.
The Rome statute says that the ICC could investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot, or is unwilling to do so genuinely.
Under the above provision, the ICC launched an investigation into Russia’s invasion of Ukraine. Though neither Ukraine nor Russia are ICC members, Kyiv accepted the court’s jurisdiction for alleged crimes on its territory going back to late 2013 and early 2014, when Russia annexed Crimea.
In March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin on charges of forcibly deporting Ukrainian children. But that warrant has not been executed so far as Putin has not visited any country that is willing to apply it.
Other important leaders who have been issued warrants by the ICC include Libya’s Muammar al-Qaddafi, but he went into hiding and was killed before he could be apprehended. There is a warrant against Qaddafi’s son, Saif al-Islam, bu he remains a fugitive.
There is Omar al-Bashir of Sudan, the first sitting President to be indicted by the ICC. He avoided arrest by traveling abroad only with assurances from friendly foreign leaders that they would not turn him over. He was overthrown from power by a military coup in April 2019, but the new Sudanese authorities have not extradited him so far.
Given this uninspiring history, it is highly unlikely that Netanyahu will ever be apprehended. In fact, the ICC had not publicly issued arrest warrants on May 20. The ICC has only said that prosecutor Khan had only requested for the arrest warrants to be issued.
Secondly, the ICC itself is not a police force and cannot make arrests. If the ICC issues an arrest warrant, it is the responsibility of the member states to arrest and bring the accused to court, as they cannot be tried in absentia. And so far, if any major country has said it will arrest the Israeli leaders if warrants are issued, then it is only France.
Any realistic assessment of the ICC will show its severe limitations when its authority is not accepted by the world’s leading countries like the U.S., China, India, and Russia. The liberals’ argument that the ICC can bring anybody under its purview on the basis of “the doctrine of universal jurisdiction” is a feeble one. This doctrine says that perpetrators of heinous crimes should not escape justice by invoking the counter-doctrine of sovereign immunity or the sacrosanct nature of national frontiers.
The ideological supporters of universal jurisdiction cite two precedents in favor of their contention. First is the precedent of the famous Nuremberg trials of Nazis during 1945-46. But this is a wrong precedent in the sense that the Nuremberg judges tried the Nazis for starting World War II, not for atrocities they committed during the War.
In fact, the Nuremberg judges never challenged the concept of state sovereignty, something which, ironically, the Nazis themselves had contested. Let it be remembered that according to the Nazi theory of “great space,” state sovereignty was a bogus concept and that great powers should have the legal right to interfere in the internal affairs of smaller nations in their spheres of influence.
The second precedent that the Universalists cite is the one set by the 1998 British detention of for more than six months of former Chilean President Augusto Pinochet following an extradition request by a Spanish judge seeking to try the erstwhile “dictator” for crimes committed against Spaniards on Chilean soil.
Ultimately, the matter went to the judiciary committee of the House of Lords, which did not exactly oblige. Ultimately, it was left to the political decision of the British government, which vetoed the extradition on Pinochet’s “health grounds.”
Thus, Netanyahu, like Putin, has nothing much to worry about. In fact, he should thank Karim Khan for injecting him with vitality to prolong his political career.
- Author and veteran journalist Prakash Nanda is Chairman of the Editorial Board – EurAsian Times and has commented on politics, foreign policy, and strategic affairs for nearly three decades. A former National Fellow of the Indian Council for Historical Research and recipient of the Seoul Peace Prize Scholarship, he is also a Distinguished Fellow at the Institute of Peace and Conflict Studies.
- CONTACT: prakash.nanda (at) hotmail.com
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