The Court has been subjected to attacks seeking to undermine its legitimacy and ability to administer justice and realise international law and fundamental rights; coercive measures, threats, pressure and acts of sabotage. Several elected officials are being severely threatened and are subjected to arrest warrants from a permanent member of the UN Security Council, merely for having faithfully and diligently carried out their judicial mandate per the statutory framework and international law. Two other warrants have been newly issued, as in the Presidency’s recent public statement. The Court is being threatened with draconian economic sanctions from institutions of another permanent member of the Security Council as if it was a terrorist organisation. These measures would rapidly undermine the Court’s operations in all situations and cases and jeopardise its very existence. We firmly reject any attempt to influence the independence and the impartiality of the Court. We resolutely dismiss efforts to politicise our function. We have and always will comply only with the law, under all circumstances.
Judge Tomoko Akane, ICC President, 2 December 2024
ICC President Akane’s remarks at the 23rd session of the International Criminal Court’s (ICC) Assembly of States Parties are as alarming as they are Cassandraesque.
The ICC is at a watershed moment. Since its inception, it overpromises and underperforms, trying to be all things, all places, all at once. The unfolding drama and panic over the arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant may prove the ICC’s critics right: that is more of an African court, willing and able to prosecute Africans, but unwilling or unable to prosecute Westerners and their friends.
In his inaugural speech, ICC Prosecutor Karim Khan took a veiled swipe at his predecessor, Fatou Bensouda, alluding that she had spread too thin the OTP resources. He promised to be judicious. No doubt, it has been challenging since he was sworn in. Yet, circumstances considered, some are questioning his judgement.
Khan knew that his actions – principled and righteous as they may be – risked irreparable harm to the ICC. He must have or should have known that these arrest warrants would cause considerable consternation for those signatories of the Rome Statute who are Israel’s allies. Weighed against the events that continue to unfold in Gaza, seeking these arrest warrants may seem courageous but ultimately prove unwise and untampered, as illustrated in this exchange between US President Abraham Lincoln and US Congressman Thaddeus Stevens in the film Lincoln:
Lincoln: I admire your zeal, Mr. Stevens, and I have tried to profit from the example of it. But if I’d listened to you, I’d have declared every slave free the minute the first shell struck Fort Sumter; then the border states would’ve gone over to the Confederacy, the war would’ve been lost and the Union along with it, and instead of abolishing slavery, as we hope to do in two weeks, we’d be watching helpless as infants as it spread from the American South into South America.
Stevens: Oh, how you have longed to say that to me. You claim you trust them—but you know what the people are. You know that the inner compass that should direct the soul toward justice has ossified in white men and women, North and South, unto utter uselessness through tolerating the evil of slavery. White people cannot bear the thought of sharing this country’s infinite abundance with Negroes.
Lincoln: A compass, I learnt when I was surveying, it’ll point you True North from where you are standing, but it’s got no advice about the swamps and deserts and chasms you’ll encounter along the way. If in pursuit of your destination you plunge ahead, heedless of obstacles, and achieve nothing more than to sink in a swamp, what’s the use of knowing True North?
Would Netanyahu be arrested and transferred to The Hague on charges of war crimes and crimes against humanity were he to set foot in any of the ICC’s 124 States Parties (members) to the Rome Statute? Maybe. And therein lies the rub.
With jurisdictional challenges resolved (for now) and US threats against Khan failing to gain traction, the ICC Pre-Trial Chamber issued arrest warrants for Netanyahu and Gallant. Presumably, Israel will seek to have the ICC Appeals Chamber delegitimize charges against any Israeli for any alleged crimes (in Gaza or elsewhere) because Palestine is not a State. Thus, it will assert, the ICC has no jurisdiction. This may seem like a desperate legal ploy doomed to fail since the ICC embraced Palestine as a full-fledged member. Yet, this may be the off-ramp the ICC needs to avoid the calamitous consequences of US sanctions. Were Israel to prevail in this appeal, the ICC would breathe a secret sigh of relief.
In former Sudanese President Omar Al Bashir’s case, the ICC Appeals Chamber held that sitting heads of state enjoy no immunity under customary international law. After Mongolia, a member, recently rolled out the red carpet for Russian President Vladimir Putin despite a pending ICC arrest warrant, the Pre-Trial Chamber found the Rome Statute brooks no exceptions.
In theory, ICC members seem to lack wiggle room when enforcing arrest warrants. In practice, the lack of mechanisms to enforce compliance provides uninhibited latitude to indulge in situational ethics and creative contortions to avoid arresting a head of state. The consequence of noncompliance is a toothless reprimand.
President Victor Orbán of Hungary, a member, quickly denounced the ICC, inviting Netanyahu for a state visit. France declared that Netanyahu enjoys immunity because Israel is not a party to the Rome Statute, even though the crimes charged are alleged to have occurred on the territory of member Palestine. Germany expressed a need to consider the matter, while the UK ambiguously noted that it would follow the law without committing to arresting Netanyahu.
France, Germany, and the UK – stalwart liberal democracies and staunch supporters of the ICC – are sure-footed on the law and their legal obligations when it comes to arresting and prosecuting Putin but cagey when it comes to Netanyahu. They are not outliers. Other members, such as Italy, Australia, Sweden, Estonia, Bulgaria, Romania, the Czech Republic, Argentina, and Paraguay, are reluctant to enforce the arrest warrant.
This blossoming ambivalence and dissension have emerged against the backdrop of a broader political and rhetorical campaign against the ICC by Israel and the US. Netanyahu has been claiming antisemitism and anti-Israel bias, while Biden has been claiming false equivalence in the lumping of Israel’s self-defense with Hamas’ unprovoked acts of terror.
Every side to a conflict, irrespective of the righteousness of their position, is accountable for breaches of the laws and customs of war. That said, just because the Pre-Trial Chamber found reasonable grounds to believe that Netanyahu committed crimes falling under the ICC’s jurisdiction does not mean that the evidence would ultimately sustain a conviction. Starvation may have occurred because of Netanyahu’s approach to the war in Gaza, but proving that it was intentional will demand evidence beyond mere “reasonable grounds to believe.”
Whatever the evidence may be against Netanyahu, it is unlikely that he will find himself in the ICC dock. Reality will set in. US sanctions against the ICC and any entity or state doing business with the ICC (expected once Trump is president) will cripple the institution. The judges on the Appeals Chamber will be lobbied and pressurized to take the most convenient and ICC-preserving out by delegitimizing Palestine’s ICC membership, even if, in doing so, it will also delegitimize the ICC’s independence.
Even if the Appeals Chamber resists this most convenient approach, cleverly phrased “interest of justice” justifications will at some point surface to provide indefinite suspension if not outright dismissal of the arrest warrant. Either way, the stain on the ICC’s legitimacy will be long-lasting, corroding even further its perceived image of a flawed and selective court with a pro-Western bias.
This saga strips the veneer, revealing the ICC members’ fair-weather commitment to the Rome Statute. Their resoluteness to the ICC’s raison d’être cynically goes only as far as their realpolitik situational interests; convenience trumps their legal obligations. This should come as no surprise. The ICC is as susceptible to external geopolitical pressures, cynical double standards, and justice à la carte penchants as other international criminal tribunals.
By equivocating and abandoning their treaty obligations to enforce the Netanyahu arrest warrant to avoid the US’s wrath, the member states have exposed the ICC’s Achilles heel and, to mix metaphors, the institution is starting to crack. Might the Netanyahu arrest warrant be the poison arrow that dooms the ICC’s legitimacy and relevancy?
Post Script: Mea culpa. Readers of this blog may look at my last post on this subject — PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move — and see inconsistency. They would not be entirely wrong. I have struggled to reconcile my position. In earlier posts I supported Khan’s unflinching commitment, dismissing US Senator Cotton’s threats. While I remain convinced that Khan acted on principle and conviction, in retrospect I should have also cautioned against overreaching and counseled for a more prudent, incremental approach, such as starting at mid to senior level officers near the action responsible for making decisions, then in a pyramid fashion, working up the chain of command. I continue to believe in the ICC’s mission and Khan’s integrity, I just worry that the path chosen risks an already wobbling institution sinking into Lincoln’s feared swamp.
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Dear Michael,
unfortunately you are right to a certain extend. Why aren’t we shocked in a similar way, that Lavrov was able to appear in the EU (Malta) without being apprehend? Didn’t he call in the very beginning like Putin
call for genocidal act/extermination of Ukraine. The TV speeches together wit the consequent acts of subordinates: aren’t they evidence enough at least for a spontaneous arrest warrant, that is due since long. Aren’t both protected by the cynical unrealistic US idea to establish an “Aggression Court”?, de facto hindering the ICC to act in accordance with their own duties? What about the Syrian leadership at least because of the chemical weapons used against own people? Are we on the eve of destruction of ICC?
Good old times at ICTR…
Dear Mr. Karnavas:
You made and interesting point but I hardly think the Court is in a between Charybdis and Scylla situation.
When the International Court of Justice in the case “Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)” issued three orders indicating Provisional Measures including to halt military operations in Gaza (January 24th 2024, March 28th 2024 and May 24th, 2024) ordering Israel to fullfil its obligation according to the Genocide Convention, it is impossible for the ICC to look the other way no matter what. It is also the case in the Ukraine-Rusia war and the Rohinga Genocide cases. The ICJ seems to be the international “equalizer” issuing orders (almost all of them disobeyed) and exposing alleged crimes. And yet I haven´t heard of threats against the ICJ Judges. In my view what is happening with the ICC is an indirect consequence of the shifting balance of power from the West towards the East. The West feels unsure about their power and is ready to throw away the International Liberal Order and Institutions it created. Thus they behave like cowboys shooting the very institutions that should be their legacy.
Seems from a layperson’s view it boils down to an issue of power. Those individuals who are issued ICC arrest warrants have to first be either deposed within borders or lose the conflict in which they are involved, before any likelihood of their ending up in front of the ICC. Further, the hope that a country will just hand over a person at the highest level of government is to assume that the populace agrees with the basis for the arrest warrant issued by the ICC, in the first instance. Also, any country that agrees to a visit by such an ICC-designated arrest warrant leader and then hands over said individual to the ICC would seemingly put itself at risk in terms of national reputation and a potential backlash from the ‘arrested’ dignitary’s state. The reality is that power in these circumstances takes precedence over international rule of law, like it or not. It seems the Russian and Israeli leaders identified by the ICC have little to fear from any of these possibilities.