For many years, the International Criminal Court (ICC) has been adjudicating conflicts around the world, but recently there have been increasing concerns over the Court’s impartiality, especially against the backdrop of judgements on Israel that were allegedly influenced by top US officials.
The credibility of the ICC has been shaken after South Africa’s landmark lawsuit against Israel, accused of genocide of Palestinians in the Gaza Strip. South Africa’s Minister of International Relations and Co-operation of South Africa, Ronald Lamola, the chief accuser, said the UN International Court of Justice’s judgement in the lawsuit against Israel proved the rule of international law.
All countries must be treated equally and Israel is no exception. It cannot in any exceptional way disregard the UN Genocide Convention, other UN conventions as well as international law.
Genocide of Palestinians
Israel’s retaliatory offensive against Hamas since the 7 October 2023 attack has resulted in catastrophic damage to the people of Gaza, as the Israeli government has been unable to provide essential food, water, medicine, fuel, and other humanitarian aid to the civilian population, South Africa’s representatives to the Court said.
However, Israeli military action continues despite the Court’s ruling, with Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant and his predecessor Benny Gantz still unpunished.
In response to Netanyahu’s request, US President Joe Biden’s administration ordered a cut in funding to the UN agency for Palestinian refugees and Works Agency (UNRWA), which only exacerbates hunger and the collapse of social services.
UNRWA provides food and basic needs to some 5.7 million registered Palestinian refugees in East Jerusalem, the West Bank, Gaza, Jordan, Lebanon, and Syria.
It is clear from what is happening in Gaza that the ICJ’s 26 January ruling has only further emboldened the Netanyahu government accused by South Africa of genocide against the people of Palestine. Israel promised to “take all measures within its authority to prevent and punish those responsible for committing acts of genocide.” At the same time, the Netanyahu administration, “appointed” to fulfil the mandate to “prevent and punish,” cannot be accused of committing “acts of genocide.”
Roots of the issue
In other words, the judges upheld almost all of the urgent measures that South Africa requested, but did not stop the Israeli military operation in the Gaza Strip. The lack of an explicit demand for a ceasefire is presumably due to who was heading the ICC.
The Court ruled that the Israeli government must guarantee that its armed forces will not commit genocide against the people of Gaza, take steps to prevent and punish calls for such action, and ensure that all evidence of the alleged genocide is preserved. However, there were apparently some difficulties with the ceasefire demand.
In such a situation, the US, Israel’s staunch ally, remained victorious. After the Court’s ruling, Israel was entitled to “take measures in accordance with international law to ensure that the attack of 7 October is not repeated.” In other words, Israel, accused of genocide of the Palestinians of Gaza, became, in the judgement of the Court, the victim of genocide by the Palestinians themselves.
Court Jurisdiction
The ICC was founded as a permanent institution of international criminal justice. In this respect, it differs from other permanent international courts such as the International Court of Justice of the United Nations. The former deals with cases against individuals, while the latter deals with interstate disputes.
Media often confuse the two courts with each other or misreport the name of the Court, as both courts are based in The Hague and the ICC is supposedly not tied to any international organisation. The ICC has jurisdiction over four categories of international crimes: aggression, genocide, war crimes and crimes against humanity. However, the two courts are closely intertwined.
The ICC considers the above crimes if they were committed on the territory of state parties or their nationals. However, a state that is not a party to the Rome Statute may recognise the jurisdiction of the ICC over a specific situation. In doing so, the Court operates according to the principle of complementarity, that is, it does not replace but “complements national criminal justice authorities.” For this reason, it only acts when national courts are unable or unwilling to hear a case.
There are 124 States parties to the Court, including Palestine, whose international legal status remains unclear. The Court relies on the cooperation of the authorities of States Parties to apprehend suspects, as it has no police force of its own, and therefore each State is obliged to arrest anyone on its territory on the basis of an ICC warrant.
The Court is funded by contributions from States Parties in proportion to their economies. The largest contributions are paid by the UK, Germany, France, and Japan. However, the main complaints against the ICC are related to its powers, which, according to some states, threaten their state sovereignty. In addition, the Court is often criticised for the political bias and partiality of the judges and the Prosecutor.
US double standards
The US stance on the ICC is ambiguous. Initially, the country actively supported the creation of the new court and actively participated in the drafting of the Rome Statute. However, it eventually voted against the final draft of the treaty because of concerns that the Prosecutor would have unlimited power and could subject American soldiers and officials to politicised prosecution.
The US later signed the Rome Statute, but soon withdrew its signature. In 2002, the country’s Congress passed a law under which the US President can take all necessary measures to protect Americans from prosecution by the Court. In addition, the country has entered into dozens of agreements with other nations obliging them not to extradite American citizens to the Court.
Many countries accuse the US of using the ICC when it is profitable. In other words, Washington supports the court’s decisions, such as the UN Security Council’s referral of the situation in Darfur, Sudan, to the Court despite the fact that the country is not a party to the Rome Statute. At the same time, the US uses its clout to influence the decisions of the ICC and the ICJ regarding Israel’s war in Gaza.
On 20 May, the ICC prosecutor issued a statement demanding the issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and the country’s Defence Minister Yoav Gallant. The court accuses the politicians of committing war crimes and crimes against humanity committed on Palestinian territory since 8 October 2023.
Later, Pentagon chief Lloyd Austin said that the American leadership will continue to support the ICC regarding the situation in Ukraine, despite the requirement to issue an arrest warrant for Netanyahu. In other words, the US government supported the body’s initiatives in Ukraine but did not support them in Israel, which again points to US double standards.
Influence of US Senators
US senators have held secret talks with senior ICC officials over the possible issuance of an arrest warrant for Israeli Prime Minister Benjamin Netanyahu and other members of the country’s leadership, Axios reported in May.
A bipartisan group of senators held a virtual meeting on Wednesday with senior officials at the International Criminal Court to express their concern about possible arrest warrants being issued for Israeli leaders over the war in Gaza, according to three sources who were in the meeting or briefed about it.
The initiative to involve US senators, according to sources, came from Netanyahu himself, who was “extremely nervous” of the ICC threat and had managed to talk to several senators in the US from both parties in recent days, “asking them to press the ICC prosecutor not to move forward with arrest warrants.”
The White House later said the US did not support the International Criminal Court’s investigation into Israel’s actions in the Gaza Strip and did not believe the court had jurisdiction over the issue.
Thus, the ICC has once again become a hostage to the struggle between the US elite. This only emphasises the bias of the Court and its political dependence on the US.
