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FRIsraelis won't throw him under the bus. Abir Sultan/Pool/AFP via Getty Images
International law has spoken once again. Israeli Prime Minister Benjamin Netanyahu, as well as former Defence Minister Yoav Gallant, are now wanted men. The International Criminal Court has, for the first time in its 22-year history, issued arrest warrants for democratically elected politicians.
Netanyahu, accused of starvation and directing attacks against civilians, has described the warrants as “antisemitic” and a “dark day in the history of humanity”. Keir Starmer has nonetheless effectively endorsed them.
It’s hard, though, to see how the warrants stand up as law. Israel is not a member of the ICC and Palestine, which along with human rights luminaries South Africa, Bangladesh, Bolivia, Comoros, and Djibouti petitioned for the warrants, is not recognised as a state by many. Meanwhile, the Rome Statute that governs the ICC states that any member cannot affect “the rights and privileges” of a third party that is not a signatory.
It’s unsurprising, then, that the Israelis are enraged. The particularly egregious crime of starvation, according to the Statute, relates to “depriving [civilians] of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions”. To prove this, the court must show that Israel acted with the deliberate intent of starving civilians. It’s hard to see how it can given Israel permits aid into Gaza daily. Food insecurity is not an indication of deliberate starvation; nor can Israel do anything to mitigate the hijacking of aid supplies by Hamas.
Yet more enraging, as far as the Israelis are concerned, the ICC is only supposed to intervene as a court of last resort when a nation is “unwilling or unable” to investigate alleged crimes itself. As Dr Yuan Yi Zhu, a fellow at Policy Exchange, points out: Israel’s “fiercely independent” prosecutors weren’t allowed the opportunity to investigate themselves before the ICC issued the warrants.
And the warrants aren’t only legally disreputable, they’re politically cretinous. They’re a gift to Netanyahu — who was reviled by many Israelis even before the negligence that allowed October 7 to happen. Now though, in the face of this type of external attack, the country is rallying behind him. The result? He will almost certainly feel emboldened. More military operations, not fewer, are likely in Gaza and Lebanon. And you can forget any idea of a negotiated peace — at least for the moment. If Palestine is putting out arrest warrants on Netanyahu, he’s hardly going to be making deals with them. It’s a colossal own goal.
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SubscribeThe point that’s missed, I think, is that the ICJ’s posturing does a great deal of PR and reputational damage to Israel, as those who know or care little of this corrupt kangaroo court’s workings will cite the arrest warrants to judge and condemn Israel in the court of public opinion. As with the ICC rulling, which did NOT accuse Israel of genocide, such lawfare nevertheless emboldens those who want to, and gives traction to those who want to delegitimise Israel under cover of spurious legal arguments.
Hate to be pedantic, but there is a difference between the ICJ and the ICC. Both, confusingly, are located in The Hague.
The ICJ is an organ of the United Nations. Its authority is recognised by all member states of the UN. It adjudicates on disputes between member states.
The ICC was founded in 2002. It is recognised by the UN, but it’s not part of the UN. It was the result of Clinton and Blair at their boy-scoutish worst. It prosecutes individuals, not countries. The idea is that no villain should ever evade justice. Notable convictions are Milosevic (Serbia) and Taylor (Liberia). It is recognised only by around 60 countries.
The ICC did not try Milosevic or Taylor. They were brought before ad hoc tribunals: International Criminal Tribunal for former Yugoslavia and Special Court for Sierra Leone respectively, both created by UNSC. Milosevic died in his cell in 2006 before the trial concluded. Incidentally, it was Mr Khan who acted as a defense lawyer for Taylor.
Thank you for the correction. Much obliged.
Hi David, thanks for the explainer. I do know the difference but got the ICJ and ICC the wrong way round in my comment. The ICJ goes after states, with a particular penchant for Isreal; the ICC goes after individuals, with a particular penchant for Israelis. The other ICC – International Cricket Council – seems so far less bothered with Israel, but that could change if they start to become good at cricket.
Why do all modern bad ideas lead back to Blair? I’d happily hand him over to either court for war crimes in leading Britain into an illegal war.
Exactly. Israel’s detractors will cite the arrest warrants forever more, as if the case has already been adjudicated. You are correct to remind readers that the ICC did not accuse Israel of genocide. But ever since the ruling that the case could proceed, news sites such as The Times (London) have been flooded with comments which assume the IDF is committing genocide. Even if this lawfare fails, the taint – this blood libel – will not wash away and will be all that those who previously sat on the fence remember. That’s the reason why SA, backed by Iran, initiated the lawfare: because even if they fail they win.
Sorry, but the entire notion of “international law” is and always has been a farce meant for consumption by people who can’t or won’t accept the hard truth that disputes between nations are and always have been decided mainly by cold calculations of national power and self-interest, not by any set of legal or moral principles. In the best of times, international law and courts serve as mutually agreed upon venues among more or less friendly nations to debate and resolve those routine disputes that do not merit the direct attention of national leaders and governments. Such authorities and standards as may be created and agreed upon are at all times subject to the continued willingness of all parties to continue to abide by them. Such consent can be withdrawn at any time with consequences determined always and exclusively by those same calculations of relative national power.
American voters, particularly Trump voters, are pretty comfortable with this. Most Americans don’t know what the ICC is, let alone care, and most would probably scoff at the notion that an international organization that they didn’t vote for should or does have any authority over them or the country. Most likely they also won’t care whose arm Trump has to twist or what threats he makes to whom or which country gets shafted in the deal, so long as it saves taxpayer money or benefits Americans in some other way. Even those who didn’t vote for Trump probably wouldn’t cite the well being of the international order or America’s reputation as being high on their list of concerns, if it makes the list at all. Thus, when Lindsey Graham threatens to sanction whoever he pleases and expresses contempt for the entire concept of the ICC, he is speaking in the stark language of power politics that Americans, those who care anyway, would probably endorse. Indeed, Graham is speaking so provocatively because he knows it will resonate with his voters and score political points. To put it in the common vernacular, he knows the voters have his back on this one.
The ICC should just go away. It’s a mockery of justice.
Along with the WHO.
and the UN.
And the WTO, WEF, and IMF.
The ICC’s ludicrous behaviour also emboldens the terrorists and their supporters on our streets, who will see it as validation of their prejudices against Israel and further justification for their mindless genocidal chanting.
This is spot on.
Most Israelis despise Netanyahu, and at the same time, you can’t fill a phone booth with Israelis who think that these arrest warrants are justified. Besides, the second accused, Yoav Gallant, enjoys a lot of respect even from Israelis who do not agree with him politically. So to think that Israel will ever deliver them to The Hague, you must be living in a fantasy world. As, alas, many of Israel’s detractors do. They are willing to sacrifice important institutions such as the ICC, the ICJ, and the UN, and to cheapen charged terms such as colonialism, apartheid and genocide, on the altar of their hatred. This has nothing to do with justice or morality, and everything to do with psychology.
“ the warrants aren’t only legally disreputable, they’re politically cretinous”
Beautifully worded! They’re also a propaganda coup for Iran, Hamas, Hezbollah and all their fellow travellers. Virtually the whole of Islam and the western Left will claim legal support.
Yes. The real point of announcing warrants is political, since the ICC doesn’t usually announce arrest warrants.
The situation with the ICJ is galling as well. Debt-ridden South Africa brought the baseless genocide allegation because Iran promised it compensation.
International Clown Court
Criminal International Court would be better. Trump could appear to imbecilicly misnamed it. Biden, well…
Well said, indeed …..
It’s worth comparing Mr. Patrikarakos’ excellent piece with Jonathan Freedland’s, in the Guardian on 22nd November, and you can see what an almighty foulup this is for all concerned. It’s a right old muddle. The only guaranteed loser is the concept of international law.
Still, it has its comic aspects. Maybe we should send Starmer to Israel to try to perform a citizen’s arrest. Can’t help thinking that on a deep, poetic level, Netanyahu and Starmer deserve each other.
Perhaps the Israelis could detain Starmer and rid us of this troublesome prime minister!
It is my sincere hope that President Trump makes a finding that the ICJ, in asserting authority over non-member states, is a danger to the USA, and acts accordingly (and militarily).
The ICC like other organisations set up for the greater good no longer really exists for this cause. Time to close them down perhaps
The prosecutor of the ICC, Khan, said that a US official had told him the ICC was “built for Africa and for thugs like Putin”.
I’m gratified to see the colonialists in this comment section agree so movingly.
Excellent comment Bravo!
This is a very good article. There is still much more that could be added to it.
-The ICC had to bend its own rules to give the Palestinian Authority standing to bring the case, since the Palestinian Authority doesn’t meet the Rome Statute’s criteria for statehood and only states can bring charges. This is quite apart from the fact that Israel isn’t a signatory to the statute.
-There was always the puzzling business of Karim Khan’s last-minute decision to cancel his scheduled trip to meet with Israeli officials, followed by his immediate call for arrest warrants.
-But that’s not all. The Famine Review Committee determined that Khan’s allegations of an orchestrated famine were unfounded.
Did Khan dispute the Committee’s findings? No. Instead, he requested that the ICC judges not consider any new evidence submitted to the court! The judges chose to honor this request, notwithstanding that the rush to seek the warrants effectively denied Israel any meaningful input into the process.
Karim Khan abruptly canceled his planned meeting with Israeli officials and rushed to seek arrest warrants for allegedly orchestrating a famine.
When the Famine Review Committee determined that there was no famine, Khan did not dispute its findings. Instead, he asked the judges not to consider any additional evidence.
In short, Khan and the ICC effectively rigged the proceedings so that Israel would have no real opportunity to challenge his allegations.
This is a very good article. It gets to many of the key problems with the ICC’s conduct. And yet, there are other serious problems as well. Three are as follows (see comment below):
Sorry for my ignorance, but what does IHL stand for? (Starmer’s North Star).
There is one big inaccuracy in this accuracy. Namely Assad did not actually carry out Chemical weapons attacks. Sure he was accused of that with no evidence, but that accusation has been debunked and the attack probably came from the rebels. This sort of misinformation weakens the article considerably.
How on earth do you believe that to be true?
Indeed, without a trial, what can be proved one way or another.
There was a faked attack designed to get the west to react, which we did without first examining all the evidence. But there were many more which have been investigated and found to be down to Assad.
https://en.wikipedia.org/wiki/Use_of_chemical_weapons_in_the_Syrian_civil_war#:~:text=The%20deadliest%20attacks%20were%20the,people%20and%20injuring%20500%20civilians).
Wikipedia’s “truth” on contentious topics depends on the last person who edited it.
Netanyahu deserved to be in the Hague long before October 7th. Many seem to forget history started before October last year.
When did history begin?
When the Noble Prophet, peace be upon him, mounted a white horse from the roof of the nascent temple in Jerusalem, now the Al Asqa mosque, and ascended into heaven, leaving behind his favorite wives and concubines, and also warring factions that to this day are gleefully conducting a bellum omnia contra omnium.
This of course means that 170 decades later, Israelis all have to flee for their lives. And that when we ascend from Denver to Pittsburgh, we have to take off our shoes and stand still for x-ray nudie pics at the airport.
Perfectly reasonable.