Israel’s Prime Minister Netanyahu has labelled prospective action by the International Criminal Court to hold him accountable for the murder of 14,500 children in Gaza as “an unprecedented antisemitic hate crime”.
Paul Heywood-Smith is an Adelaide KC of some 20 years. He was the initial chairperson of the Australian Friends of Palestine Association, an incorporated association registered in South Australia in 2004. He is the author of The Case for Palestine, The Perspective of an Australian Observer published by Wakefield Press in 2014
Cross-posted from Pearls and Irritations
In recent weeks we are suddenly seeing heightened interest in the International Criminal court (ICC). It is necessary to understand just what it is, its limitations, but also its potential as an initiator of World change.
The ICC was created by the Rome Statute of the ICC, done at Rome in 1998, and coming into force in 2002. 124 countries are States parties to the Statute. Perhaps of most significance to Australians are, Australia itself, Canada, France, Germany, Greece, Ireland, Italy, Japan, New Zealand, Republic of Korea, South Africa, Spain, State of Palestine and the United Kingdom. The State of Palestine, as a permanent observer state at the UN, was accepted as a signatory in 2015 at the request of the Palestinian Authority. In 2021 the ICC decided that its territorial jurisdiction extended to Gaza and the West Bank. Significant countries which are not signatories are the United States, China, Israel, Russia and Ukraine.
The court was set up, in the Hague, to try individuals for genocide, war crimes, crimes against humanity, and aggression. The ICC is to be distinguished from the International Court of Justice (ICJ), which addresses litigation between states, such as the recent, and presently unconcluded claim by South Africa against Israel that it is committing genocide in Gaza.
Returning to the ICC, what is its basic procedure? There is an office in the ICC known as the Prosecutor. Currently it is occupied by Karim Khan KC, not surprisingly, from the English bar. A potential crime might be referred to the Prosecutor by a State Party to the Rome Statute, or the Security Council. An investigation may be initiated by the Prosecutor him or her self. The Prosecutor’s role is to assess, and if satisfied that there is a case to answer, to seek approval from a panel of judges to lay a charge. The laying of a charge does not, however, mean that a trial is inevitable. A defendant cannot be tried in absentia. The defendant must be brought to the court, or submit him or herself to the court’s jurisdiction.
Vladimir Putin is an example of the limitations. A charge has been laid in respect of the 2022 invasion of Ukraine and the alleged war crime of securing the lives of children, i.e. removing children from the Donbass to Russia proper. Because Russia is not a signatory it has no obligation to detain Putin and present him to the Court. Then there is the other problem that because Ukraine is not a signatory, there is a primary jurisdiction issue. The ICC lacks jurisdiction unless the accused was a national of a state party to the Rome Statue, or unless the crime was committed on a territory of a state party.
Current heightened interest is in the prospect of Bibi Netanyahu being charged, together with Defence Minister Gallant and IDF Chief of Staff Halevi, and indeed for leaders of Hamas. The prospective charges against the Israelis named, relate to the actions in Gaza, potentially of preventing the delivery of humanitarian aid to the Gaza Strip and pursuing an excessively harsh response to the October 7 attacks. Jurisdiction is said to arise because Gaza is recognised by the Court as part of the State of Palestine, a signatory. That is not to say that the US and Israel will not, if the occasion arises, seek to challenge that jurisdiction.
US and Israeli attempts to preclude charges
Whatever the prospects of challenging the jurisdiction, the US and Israel are concerned enough to attempt to preclude any charges being laid. Netanyahu is apparently increasingly concerned at the prospect of the ICC issuing arrest warrants. He has gone on social media to assert that any intervention by the ICC would set a dangerous precedent and that he would never accept any attempt by the ICC to undermine Israel’s right of self-defence. He has labelled such prospective action as “an unprecedented antisemitic hate crime”.
In the US we have House Speaker Johnson calling on the ICC to “stand down on this immediately”. It is further reported that a group of Republican senators has written to Prosecutor Khan warning him not to issue arrest warrants against Netanyahu and threatening him with “severe sanctions” if he does. The sanctions are said to include barring ICC employees and associates and their families, from entering the US. Secretary of State Blinken has asserted that the ICC has no jurisdiction because Israel is not a signatory to the Rome Statute. And yet the US supported the ICC’s decision to issue a warrant for Putin over crimes committed in Ukraine, even though neither Russia nor Ukraine are parties to the Rome Statute: double standards?
The threats to the Prosecutor and his staff are such as to be seen as intimidation, resulting in the Prosecutor’s office issuing a statement last week that such threats undermine the Court’s independence and impartiality and must cease immediately.
So, what are the likely scenarios? We can only hope that the ICC will do its job. The current indications are that charges will be laid. Proceedings are however unlikely to occur because the accused will either not leave Israel, or if they do, go only to a state not under an obligation under the Rome Statute to apprehend the accused and convey him to the Hague to be dealt with, e.g. the US.
But the impact of charges being laid is likely to be significant. A groundswell is occurring as evidenced by the ICJ proceedings brought by South Africa, against Israel, and the ICJ proceedings being the advisory opinion sought by the General Assembly on the legal status of the occupied territories. Then there is the recent periodic recognition of the State of Palestine by member states of the UN, bringing the number of states that so recognise into the 140s (142 in fact) out of 193. And finally, we have the current action by the General Assembly to advance recognition, evidencing the impatience of the General Assembly with the time being taken by the ICJ with its advisory opinion. We may well be seeing the implementation of the two State solution.
If I am correct in that analysis, we may also be seeing a change in the world order, being the primacy of international law over the US alternative ‘rules-based order’. Readers will understand that the US/Israeli “rules-based order” allows what has happened in Gaza these past seven months. International law does not!
In other words, we may be witnessing the end of US hegemony.
And what of Australia? Australia should work to support the work of the ICC. Oh, and hello, Anthony and Penny, what has happened to Australia’s mooted recognition of the State of Palestine?
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