How the ICC bared its teeth - and caught the West off guard | Defence in Depth

Kareem Khan, the chief prosecutor of the International Criminal Court, is seeking the arrest of three of Hamas top commanders, but also Israeli Prime Minister Benjamin Netanyahu and the defence minister. Yo Gallon. It's a massively controversial decision, but it's also an absolutely immense moment for what we would call the rules of war. How is this going to affect the way we prosecute war crimes, but also how we fight wars in the future? Today we underline in the clearest possible fashion that international law and the laws of armed conflict apply to everyone. For those who support the ICC and it's Chief prosecutor Kareem Khan, this demonstrates that the court is not simply an instrument of Western Power. It shows everybody is equal before the law and that's important for impartiality and credibility. But for Israel and some of its Western allies, it is an absolute outrage. It shows that the court has lost its way. It's drawing an absolutely unjustified equal sign between Hamas, a genocidal terrorist group, and Israel, a democracy defending itself from unjustified attack. There is no moral equivalence between a democratic state exercising its lawful right to self defence and the terrorist group Hamas. The IC CS prosecutors don't see it that way. As far as they're concerned, there's ample evidence that these crimes took place and that the named individuals are responsible for them. Israel's right to prosecute a war against Hamas has nothing to do with it. The point is that apparently these crimes were committed during the prosecution of that war. So what happens now? It's important to underline these applications for warrants for arrest. They're not actual arrest warrants yet they have to go to a pre trial chamber made-up of three judges who have to either approve or reject the application. Now, these judges are not a pushover. They have pushed back previously. They refused an application once to arrest Omar Bashir, the former dictator of Sudan. If the arrest warrants are granted, that creates a legal obligation for any of the 124 countries who are members of the Rome Statute to arrest any of those five men. That's going to create real problems for a country like Britain, for example, which is a very close ally of Israel. If Benjamin Netanyahu or Mr. Gallant was to visit Britain or British territory, Scotland Yard would be obliged to arrest them and hand them over to the IC CS purpose built detention facility in The Hague. That would be an extraordinary scenario. It's a political and diplomatic nightmare and it's why this decision has caused such controversy at the highest levels of governments around the world. How likely are the arrest warrants to be granted? Well, the threshold is actually quite low. The judges just have to be satisfied that there are reasonable grounds to believe these crimes took place, not the higher threshold that you would need in an actual trial or beyond reasonable doubt. And in the conversations I've had with people who specialized in international humanitarian law, the level of detail that has been presented by the prosecutors in their request seems to make it quite likely that threshold is going to be met. That is a problem for both the Hamas individuals and the Israeli individuals. The evidence that's been presented is very detailed and the Israelis have a particular problem in any crime, whether it's a huge international war crime or it's a small domestic crime committed here in the UK. Proving intent is the tricky bit. I was speaking to Catriona Murdoch, who's a British barrister assisting Ukrainian prosecutors building a case against Russian commanders in Ukraine for using starvation as a weapon of war during the Battle of Mariupol. Now, part of the challenge in Ukraine is that Russian officials and commanders, like many war crimes suspects throughout history, generally avoided self incriminating public statements that would demonstrate they had a plan to use starvation as part of their military strategy. So the case will probably have to rely on demonstrating intent from their actions. The Israeli team's problem is that their clients, especially Mr. Gallant, made repeated public statements about imposing a siege on Gaza that prosecutors could use to demonstrate that kind of intent. It's quite unusual to have those kinds of statements available to put into a prosecutor's dossier. Before we get on to the big philosophical, political, legal questions that this raises, there's one other technicality that we have to address. Does the ICC even have jurisdiction in this particular war? Does the court have jurisdiction? Well, Israel says no. After all, Israel is not a member of the Rome Statute and it doesn't recognise a Palestinian state. The ICC is meant to be able to prosecute any crime committed by citizens of or on the territory of any member of the Rome Statute. I don't believe for one moment that seeking these warrants is going to help get the hostages out. It's not going to help get aid in and it's not going to help deliver a sustainable ceasefire. And as we've said from the outset, because Israel is not a signatory to the Rome Statute, and because Palestine is not yet recognised as a state, we don't think that the court has jurisdiction in this area. Israel might also argue that since the ICC is a court of last resort, it's only meant to be used when local, national, regional judicial systems are unable or unwilling to impose justice. There's no grounds to open a prosecution because Israel does have an independent, credible functioning judiciary. The ICC disagrees. Palestinian leaders signed the Rome Statute in 2015, meaning it has got jurisdiction over Gaza and the West Bank. And that was confirmed in 2021 when the pre Trial Chamber decided the court could exercise it's criminal jurisdiction in that area. And here's the quote, the territorial scope of this jurisdiction extends to Gaza and the West Bank, including E Jerusalem. On the second point, Mr. Khan has said he would much prefer Israeli courts to deal with this case, but the Israel's track record of failing to adequately prosecute crimes committed in the occupied territories makes that unlikely. What is the International Criminal Court? It can get confusing. So first of all, it is not the International Court of Justice. That's the other one you'll hear about a lot. That is aun forum. That's where countries, states can sue one another. The ICC was set up under a 1988 convention called the Rome Statute. There are 124 signatory. So it's not all members of the United Nations and it doesn't prosecute states, it prosecutes individuals. So the ICC does not have universal jurisdiction, but it has played an increasingly important role in what we might broadly call the rules based order, this idea that there is some kind of accountability for individuals and nations who have committed bad crimes. The importance of this moment is what it means for what we might call the laws of warfare. Since 1945 and even before that, there's been a big effort to kind of codify how we fight wars. And the idea is to make wars slightly more humane or to at least hold those who commit the worst crimes accountable in some way. There's a long history of this. It starts in the 1860s with the first Geneva Convention that was largely about how to treat prisoners of war. It's been rewritten and rewritten. The last time it was updated was in 1949. Other rules have been introduced elsewhere. The Rome statue adds more rules. And in terms of prosecution, the real landmark is the Nuremberg trial after the Second World War. Kareem Khan, the chief prosecutor of the ICC, has repeatedly referred back to the importance of defending the principles established at Nuremberg when defending this decision. The idea that perpetrators of mass murder or atrocity in warfare could be prosecuted or brought to justice is one we can probably all agree on. The problem is that's also always been plagued by the sense that there's an element of Victor's justice here. Even at the time, there was controversy around Nuremberg and Tokyo, and the way that while Nancy and Japanese crimes were prosecuted, certain other things committed by certain members of the Allied forces were brushed under the carpet. The most controversial one was in the Tokyo trial, where charges against Japan for the mass bombing of Chinese cities, which the Chinese wanted brought, were basically blocked. Why? Well, because the Americans knew that they had also flattened Japanese cities, and if you started prosecuting people for bombing cities, who knew where it might end? Over the objective, their bombs hustled downwards towards the Japanese headquarter. Mr. Khan, in a recent interview, said that when he was talking about applying for warrants to arrest Mr. Netanyahu and Mr. Gallant, he was told by a Western leader, who he did not name, that the court had been set up for Africa and for thugs like Vladimir Putin. In other words, not for the West and not for its allies. If you speak to practitioners of International Criminal law, the kind of people who spend their days looking for ways for prosecuting war crimes, which is a lengthy and often fruitless process, they will say this has been a problem that's plagued the ICC for a long time. The idea that really it's only interested in prosecuting Africans or other enemies of the West, such as Vladimir Putin, who is also, by the way, wanted under an ICC arrest warrant for war crimes committed in Ukraine. For those people, this is really important because it demonstrates that it doesn't matter if you are a key ally of the United States and the West. It doesn't matter if you are Israel or anybody else. If there is evidence that you have committed a war crime, you may well be subject to prosecution. But there's a real problem here. The principle of judicial independence and impartiality is clashing with really hard geopolitical questions of power and national self-interest. That's why Vladimir Putin, although he's wanted for the court, has never actually been arrested. Bashar Assad of Syria also has never been arrested. Countries who feel that their interests have been challenged by an ICC ruling or warrant can basically ignore them. Can we really imagine Scotland Yard arresting Benjamin Netanyahu on his next state visit to the UK? And you're breaking the law. If Western governments choose not to reinforce these arrest warrants, if they are issued, if they make clear that their own national interest, their own alliances are more important, if they say that we simply disagree with the findings of this court, then that's just going to reinforce that notion. And a lot of people around the world will conclude that, well, was there ever really any credible system of international justice? Maybe it always was just victor's justice. Different countries are already making different decisions about where they fall on that dividing line. France and Germany have said we will enforce those warrants if they are issued. They seem to believe that the rule of law in international relations is more important in this case than simple geopolitical self-interest. The system we call the International Rules Based Order is already under immense stress as we enter into what is, let's be honest, one of the scariest moments of international confrontation in history. We're likely to see more wars, not fewer, in the next few years. Do we really want to go back to a world before Nuremberg, before the codification of criminal justice for war crimes and crimes against humanity? Before the idea that people who commit these kinds of atrocities will be held accountable one way or another. Defence in Depth is a regular video output by The Telegraph of the big defence stories. If you'd like a daily fix of content about the war in Ukraine, I'd suggest Ukraine the Latest The Telegraph's podcast. For more defence stories. We've left links in the description below, and if you have a topic you would like us to cover, let us know in the comments. Please do visit our website for the latest updates, news and analysis. For failing that, you could buy the paper.

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