There are new potential court cases related to the current conflict in Gaza and Israel, and, for the first time, both Hamas and Israeli leaders could be in the dock.
An earlier Gaza-related legal case got underway late last year, when South Africa brought charges of genocide against the Israeli government to the International Court of Justice (ICJ).
At the time, defenders of Israel decried the one-sided nature of the proceeding.
“What about Hamas?” they asked. Why charge Israel, but give Hamas impunity for initiating the conflict on October 7, 2023, when it massacred more than a thousand people, mostly Israeli Jews, and took hundreds more hostage?
The reply was simple and factual. The ICJ, set up in 1945 as part of the United Nations constellation of organizations, does not prosecute individuals. It deals only with the governments of recognized nation-states.
Israel is a nation-state, and, ergo, accountable as one. Hamas is not.
There is another world judicial body, however, whose principal raison d’être is to go after individuals, not countries, who commit crimes against humanity.
That body is the International Criminal Court (ICC), founded only a bit more than two decades ago. Like the ICJ, the ICC is based in the Hague, capital of the Netherlands.
The ICC’s prosecutor is Karim Khan, a British lawyer, born in Edinburgh, who has dedicated much of his professional life to international human rights and criminal law.
On Monday May 20 Khan went before a panel of three ICC judges and sought warrants for the arrest of five individuals: Israel’s prime minister and defence minister, Benjamin Netanyahu and Yoav Gallant, and three Hamas leaders, Yahya Sinwar, Mohammed Deif and Ismail Haniyeh.
Khan is not charging the two Israeli politicians and three Hamas leaders with the same crimes. He is not treating them as equivalent, as some Western politicians and commentators have suggested.
The ICC prosecutor accuses Sinwar, Deif and Haniyeh of a long list of the horrific crimes Hamas terrorists committed on October 7 and in the months since then.
At the top of the list are extermination and murder. Then there are the taking of hostages, rape and sexual assault. And, finally, the prosecutor accuses the Hamas leaders of torture and abuse of prisoners and harm to prisoners’ personal dignity.
It is a frighteningly powerful list. If apprehended and convicted the three would almost certainly spend the rest of their lives behind bars.
In the cases of Netanyahu and Gallant, Khan is charging them for their disproportionate response to Hamas’ admittedly brutal and criminal attacks.
The ICC prosecutor says Israel’s military actions post-October 7 far exceed what Hamas’ initial violent incursion necessitated.
The prosecutor’s warrant states the two Israeli politicians have committed war crimes of extermination, used starvation of civilians as a method of warfare, and have intentionally directed attacks against a civilian population.
Reaction has been varied
Around the world, reaction to the new ICC charges has diverged widely.
Perhaps not surprisingly, the initial statements of the government of Israel and of Hamas almost mirror each other.
As reported in the Israeli newspaper Haaretz, prime minister Netanyahu called the ICC charges a ‘scandal’ and vowed that they ‘won’t stop’ him, or Israel.
Netanyahu’s political opponent and war cabinet colleague Benny Gantz sided with the prime minister. He decried the Court’s ‘moral blindness’ in equating “leaders of a country that went into battle to protect its citizens” with the “bloodthirsty terrorists of Hamas.”
As for Hamas, it issued a statement saying the ICC prosecutor’s request for warrants against its leaders, side-by-side with Israel’s leaders, was tantamount to “comparing the victim to an executioner.” The ICC, Hamas said, was, in effect, encouraging Israel “to continue the war of extermination.”
In Europe, France, Spain and Belgium unequivocally support the ICC’s warrants. Other European countries, notably the United Kingdom and Italy, strongly oppose them – at least, they oppose the warrants against the two Israelis.
U.S. president Joe Biden has taken vehement exception to the ICC prosecutor’s accusations against Netanyahu and Gallant. Biden called the ICC charges “outrageous”, and went on to claim “Israel wants to do all it can to assure civilian protection.”
Other countries, such as Germany and Canada, have tried to hew to a middle course. They have contented themselves with affirming the independence of the ICC, but said little in an affirmative way.
In March of this year, the federal Liberals supported an NDP motion calling for a ceasefire in Gaza and for Canada to end arms exports to Israel. That motion also enjoined the government to support the work of both the International Court of Justice and the International Criminal Court.
READ MORE: NDP motion calling for ceasefire in Gaza passes, with significant changes
On Tuesday, May 21, in reaction to the ICC prosecutor’s new charges, NDP leader Jagmeet Singh put this question to the government:
“The Liberals promised to support the ICC when they voted for our motion in March, so will the Liberal government state clearly that Canada supports the ICC’s work to hold all those responsible for crimes accountable?”
In her answer deputy prime minister Chrystia Freeland tried to have it both ways.
“Canada respects the independence of the International Criminal Court. Canada condemns the terrorist attack by Hamas on Israel on October 7. Canada calls for an immediate ceasefire and deplores the humanitarian tragedy. Canada believes it is absolutely wrong to equate the terrorist leaders of Hamas with Israel.”
That too-cautious-by-half response will not satisfy the many Canadians who believe the violence Israel is now wreaking in both Gaza and the West Bank is without any moral justification and could be tantamount to genocide.
Supporters of the current Israeli government will also be disappointed.
Canada’s Centre for Israeli and Jewish Affairs (CIJA) calls on the Trudeau government to actively resist the International Criminal Court, notwithstanding Canada’s treaty obligations.
“The Court,” CIJA president Shimon Fogel says, “is effectively acting to usurp the ability of all Western democracies to fight wars of self-defence … Canada must make it clear that it views the attempt to indict and arrest Israeli leaders as both unwise and invalid, a move that Canada does not endorse and will not enforce [emphasis added].”
A bit of context
Just about every country in the world – including the U.S., Canada, and Israel – is a member of the older and more established of the two international courts, the International Court of Justice.
At the ICJ hearing where Israel faced charges of genocide, a U.S. judge presided and an Israeli judge was on the panel considering the case.
It is a different story for the International Criminal Court.
That court was born out of the experience of the mass slaughters conducted during the multiple wars following the break-up of the former Yugoslavia and the 1994 genocide in Rwanda.
Following those tragic events, the United Nations set up special tribunals to hold individuals who had led and carried out the mass murders criminally responsible. The Rwandan tribunal took place in Arusha, Tanzania; the Yugoslav tribunal in the Hague.
It was at best a slow and awkward way to assure murderous acts did not go unpunished.
As a result of those unsatisfactory experiences in international criminal prosecution many nations put their heads together to come up with a permanent way to assure no future criminals would escape with impunity.
They proposed a new, independent international body to apprehend and prosecute leaders and others who commit crimes against humanity. Thus was the ICC born.
In 1998, over 100 countries signed on to the Rome Statute, the agreement which created the new International Criminal Court. In 2002, the Court became fully operational.
Canada is one of the ICC signatory countries, along with most countries in Africa, Latin America and Western Europe
But this relatively new judicial body has much less support worldwide than the older and more established International Court of Justice.
Many large and powerful countries are opposed to the idea any of their citizens could ever be subject to criminal prosecution by a court over which they would have little to no control.
Among the countries that have shunned the ICC are: India, Israel, Russia, Iran, most Arab countries, and the United States.
Possible U.S. sanctions against the ICC
In March 2023, the ICC indicted Russia’s Vladimir Putin for his conduct of the war against Ukraine. Even though the U.S. does not recognize the ICC’s jurisdiction, the U.S. government quickly and enthusiastically welcomed those charges.
President Biden said the ICC was “justified” in going after the Russian president, and added that the Court had made “a very strong point.”
Now, some Republican politicians in the U.S. are calling for sanctions against the ICC itself.
They are proposing a legislative measure that would target ICC officials involved with the Israel-Hamas case. The U.S. would block the officials’ entry into the U.S., revoke any current U.S. visas they hold, and prohibit them from any property transactions within the U.S.
President Biden’s Democratic Party is deeply divided on this issue.
Independent Senator Bernie Sanders of Vermont – who is Jewish and ran for the Democratic presidential nomination in 2016 and 2020 – supports the ICC warrants, as do other progressive Democrats. There is no chance they would consider supporting the Republican measure.
But other, centrist Democrats, such as Senate Majority Leader Chuck Schumer of New York, might be tempted to make common cause with their Republican adversaries on this one.
Schumer used strong language to criticize the ICC, for which he earned some effusive praise from South Carolina Republican and Donald Trump loyalist Lindsey Graham.
Spokespeople for the Biden administration have indicated they have not ruled out sanctions against the ICC.
The ICC judges have not yet granted the warrants prosecutor Khan requested, but during the ICC’s relatively short life judges have rarely rejected a prosecutor’s request.
If and when the ICC formally issues the warrants, those named will become, in effect, international fugitives. Countries such as Canada would be legally bound to arrest any of them if they enter their territory.
The Hamas leaders do not travel openly and publicly, and, in any case, Canada long ago branded Hamas as a terrorist organization.
Israel’s prime minister has, on the other hand, visited this country more than once.
For the time being, Benjamin Netanyahu might find it prudent to keep a safe distance from Canada and other countries that adhere to the ICC.
To be continued.
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