Justice on Trial: The ICC, Netanyahu, and the Politicisation of International Law

If “precision” has been Israel’s accomplishment in Gaza, who then has laid it to waste?

Those who preach the rule of law sometimes face a telling test:” do you defend its legitimacy when you don’t like its application?” On the International Criminal Court warrants for Netanyahu and Gallant, Starmer passed the test, while Biden, Professor Alan Dershowitz, two former US Attorney Generals, former Canadian Attorney General Irwin Colter, as former UK Attorney General, the majority of the US Congress, along with US and UK commentators, failed it. So too did Priti Patel shadow home secretary.

The violent verbal and written attacks on the integrity of a court, from America and from within the UK, and the declared intention of destroying it, are without precedent.

Those denouncing the ICC claim it is discredited, and guilty of having “disgraced” and “destroyed” international law. No one thought to describe it so when it sentenced, in June this year, Al Muhammed Ali Abd-Al-Rahman to nine years in jail for war crimes he committed in the Central African Republic, or when it issued a warrant for the arrest of Omar Hassan Bashir, the former ruler of Sudan.

When the ICC issued arrest warrants for President Putin and Maia- Lvova-Belova Russia’s Commissioner for Children’s Rights, there was no condemnation of the court from any western leader. Indeed, it was the opposite. The BBC reported that President Joe Biden, while acknowledging the ICC writ did not run in the USA, has welcomed the ICC’s issuing of an arrest warrant against his Russian counterpart. Joseph Borrell, Vice President of the European Commission and the EU Foreign Affairs Commissioner: “We appreciate ICC’s work. There can be no immunity.” The fact that Russia has never been a signatory to the ICC Statute was of no account. There was a prima facie case that he had committed a war crime In Ukraine, was what mattered

Ah, but they say these criminals are not like Netanyahu, prime minister of a democracy, and Israel acted in self-defence. According to Dershowitz in the Wall Street Journal, had it been in existence in 1944, “the ICC would probably have issued warrants against the Jewish fighters in the Warsaw ghetto along with the Nazis who were seeking to murder them.” This piece of hyperbole, from a highly respected American lawyer, comes from a view he holds that the ICC and the International Court of Justice have an in-built bias against Israel. His conclusion seems to ignore that the ICJ has found, based on longstanding international law, that Israel acted unlawfully in its occupation of the West Bank, and that the ICC’s judicial bench is a distinguished one, with no trace of bias in its conduct of cases or in the statement it made on the reasons why it issued the Netanyahu and Gallant warrants.

Nor is there any trace of the ICC being antisemitic, the accusation made by Netanyahu, which has become the standard response whenever anyone has a harsh word to say about the conduct of the Israeli government. This attempted barrier to criticism is used so often, it has made itself redundant. Israel is a democratic state, and it is on that basis, not its Jewish character, people have come to judge it on. We expect better conduct from a leader of a democracy than from a Bashir or a Putin.

There is also the charge that when the ICC issued arrest warrants for the leaders of Hamas for the atrocities committed on 7^th October, at the same time as the warrant issued for Netanyahu, it was drawing a moral equivalence between a terrorist organisation and the democratic state of Israel. This is a piece of sophistry. The ICC as a court address matters of law, and breaches of law in specific cases, and issues no moral judgements on the organisations from which named individuals come.

Of course Israel, under threat, has a right not only to defend itself, but to retaliate with violence when attacked by other states as it was in 1948, threatened in 1967, and attacked in 1973, or by terrorists such as Hamas and Hezbollah. It like other states, however, including democratic ones, is subject the rule of proportionality in its responses. Its leaders are like everyone else, ever since Nuremberg, subject to international law and cannot play the democratic card in a plea of immunity.

The ICC pre-trial Chamber, of three judges, found reasonable grounds from the evidence submitted by the Prosecutor, that both Israeli government ministers “bear criminal responsibility……...for “the war crime of starvation as a method of warfare; and the crimes against humanity or murder, persecution, and other inhumane acts.” That catalogue of alleged war crimes should surprise no one who is aware of the actions taken by Gallant and Netanyahu before the invasion of Gaza. The Israeli President set the tone: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved It’s absolutely untrue……and we will fight until we break their backbone.” There were one million children in Gaza. Did he include them in his promise?

It would seem so. Gallant boasted he had “removed every restriction” on the IDF. But it was the letter Netanyahu sent to Israeli soldiers inciting them to do an Amalek to Gaza that took him and his military out of proportionality and into criminality. Amalek was when the ancient Israelis, fighting a foe, were instructed to “Spare no one, but kill alike men and women , infants and sucklings, oxen and sheep, and camels and asses.” I can think of no other democratic leader who would assert that as his war aim.

Few could have missed the pictures emerging from Gaza of destruction on a scale not seen since the allied bombing of German cities in World War II, or failed to see the human suffering of its population. But according to one critic of the ICC, the former UK Attorney General Michael Ellis, writing in The Sunday Telegraph on 1^st December: “In their case of the Netanyahu warrant, however, the ICC’s analysis wouldn’t stand up to the scrutiny of a sixth- form student on a lunch break. This is because the truth is that Israelis have conducted their defensive military actions to a precision that far exceeds anything seen before, as Prof. John Spencer, chair of urban warfare studies at West Point Military Academy has pointed out. Their actions have been of greater precision than even the UK and US in recent conflicts.” If “precision” has been Israel’s accomplishment in Gaza, who then has laid it to waste?

Those now calling the ICC a “deluded partisan body” acting outside its jurisdiction, were happy to see it try and sentence non-state black Africans, but draw the line when it reaches out for elected leaders in the western democratic alliance, which includes Israel. Implicit in that view is that democratic states cannot commit war crimes, a preposterous belief given the lessons of history both in the past and recently. Democratic America’s atrocities against the HUKs in the Philippines in the 1950s, democratic Britain at Amritsar in the 1930s and the Kenyan Hola death camps in the 1950s, democratic France in Algeria in the 1960s, the US army’s massacre at My Lai in 1968, the US killings and torture in the Abu Ghraib detention centre after the invasion of Iraq are examples.

The British and US invasion of Iraq in our time was the crime of aggression, described at Nuremberg by the UK Attorney General Sir Hartley Shawcross, as the ultimate crime from which all other crimes flow. Despite Nuremberg prosecuting Nazis for it, the states signing the ICC Statute, while putting aggression in its mandate, could not agree on a definition, so the ICC could not, for years, act against those committing it. It took more than ten years to get an agreed definition by the signatory states. The UK delegation made sure it was not retrospective. Blair was saved.

It is not the ICC that is in disgrace. It is those eminent lawyers and senior politicians in the USA and UK who should hang their heads in shame. The legal road from Nuremberg, which set out the principle that leaders of nations were no longer immune from paying for the war crimes they let loose, to the creation of the ICC in 1992 was a long one, a struggle, to put in legal concrete that no one, however high was above the law, and could no longer, with impunity, unleash crimes against humanity because there was now a Court created to bring them to book.

The ICC’s new opponents, the US presidency, Congress, US lawyers, the Tory party in setting out to smear the ICC, are seeking to destroy its credibility for no purpose other than to spare Netanyahu and place Israel on an untouchable pinnacle. If they succeed, every war criminal now and in the future will be grateful to them. Netanyahu and Israel’s reputation isn’t worth that price.