The international criminal court was born more than two decades ago, largely from the genocides of Rwanda and Yugoslavia, and the contradictory impulses that they inspired: the grim recognition of the worst of human nature and the optimistic determination to address it. More than 120 countries ratified its founding treaty. But the world’s superpower – and other major players including Russia, China and India – refused.
The result, almost inevitably, was that it became regarded – in the reported words of one elected official to the chief prosecutor, Karim Khan – as “built for Africa and thugs like Putin”. In fact, Vladimir Putin’s indictment a year ago, applauded by the US and others, was regarded as a gear change for a body that had overwhelmingly charged African leaders and officials.
On Monday came another critical moment. Mr Khan said that he was seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, committed in Hamas’s 7 October attack and the ensuing war in Gaza. Yahya Sinwar, the Hamas chief in Gaza, Mohammed Deif, who heads its military wing, and Ismail Haniyeh, leader of its political bureau, are wanted for extermination, murder, hostage-taking, rape, sexual assault and torture. The Israeli prime minister, Benjamin Netanyahu, and the defence minister, Yoav Gallant, are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. Should judges approve them, these latter warrants would be the first issued for leaders from a western ally.
Although Israel never ratified the court’s founding treaty, the ICC-recognised state of Palestine did sign up and the court has jurisdiction over nationals of member states and crimes committed in their territory. Many in Israel – including staunch critics of Mr Netanyahu – are outraged by what they see as a false equivalence between a terrorist organisation and a democratically elected government. In the short term, it may well rally domestic support to the unpopular prime minister – though it further damages Israel’s global standing and may impede diplomacy.
But Mr Khan’s case does not equate either the actors or the allegations against them. It treats all victims as worthy of justice. Though Israel argues that it has domestic mechanisms to deal with alleged war crimes, that is unlikely to satisfy the judges – there is no suggestion that the state plans to investigate Mr Netanyahu’s actions in this conflict.
In the UK, Rishi Sunak called the decision “deeply unhelpful”, while the US has said it fundamentally rejects the request for warrants against Israeli leaders, which Joe Biden attacked as “outrageous”. This is a grave error. Mr Biden rightly lifted sanctions that the Trump administration placed on Mr Khan’s predecessor, Fatou Bensouda, for investigating alleged crimes by US troops in Afghanistan and by Israel in the Palestinian territories. But Republicans have threatened Mr Khan with similar treatment and the administration says it is happy to work with Congress on an “appropriate response”.
The appropriate response, made by France, Australia and others, is to support the court’s independence and importance. Mr Khan is a highly experienced and respected human rights prosecutor acting with the unanimous support of a panel of experts. The contrast between the US and others cheering on the pursuit of Mr Putin, and decrying the pursuit of an ally, has been widely remarked on. “If we do not demonstrate our willingness to apply the law equally … we will be creating the conditions for its collapse,” Mr Khan warned. Either standards apply to all, or they are not standards at all. It is not the ICC that is on trial, but the willingness of major powers to uphold the principles of international law in which they profess to believe.
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