The slow, grinding machinery of international law has just received a push along with the International Criminal Court (ICC) issuing three arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli former defence minister Yoav Gallant and, rather incongruously, Hamas military leader Mohammed Deif, on charges of genocide.
The last is somewhat odd, given Israel claims he was killed in an airstrike in July. Hamas has not confirmed nor denied the fate of Deif.
The warrants are the culmination of a May 20 request by the ICC prosecutor to a Pre-Trial Chamber of the court to issue arrest warrants for Netanyahu, Gallant and three senior Hamas officials. Two were withdrawn: Yahya Sinwar and Ismail Haniyeh were assassinated by Israel.
The three-judge panel of Pre-Trial Chamber I unanimously rejected Israel’s assertion on November 21 that the ICC lacked jurisdiction over the “Situation in the State of Palestine”, in general, and over Israeli nationals more specifically, “as the Court can exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine”.
The Chamber also rejected Israel’s request that the prosecution provide a new notification of an initiation of investigation into its authorities under the ICC Statute, given that the parameters of the investigation had not essentially changed. Nor had Israel pursued a request for deferral of the investigation when given the chance in 2021.
The arrest warrants, issued under the law of international armed conflict, remain the most telling aspect of the determinations.
Despite being classified as “secret”, the chamber deemed it important to release some degree of detail on what they entail. Accordingly, it found reasonable grounds to believe that Netanyahu and Gallant bore criminal responsibility as “co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts”.
There were also reasonable grounds to believe that both figures bore “criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population”.
The alleged conduct is sketched with chilling detail: The alleged crimes against humanity against the civilian population in Gaza were deemed to be widespread and systematic.
It was reasonable to believe that Netanyahu and Gallant had, with intent and knowledge, deprived the population of Gaza of food, water, medicine, medical supplies, fuel and electricity “from at least” October 8 last year to May 20.
This finding was easy to reach, largely because humanitarian aid had been impeded and restricted without evident military necessity or justification under international humanitarian law. When decisions to allow or increase humanitarian aid into Gaza were made, these were conditional.
The warrant for Deif, as chief commander of the military wing of Hamas (the al-Qassam Brigades) was issued because the chamber found “reasonable grounds” to believe he had allegedly been responsible for various crimes against humanity (murder, extermination, torture, rape and other forms of sexual violence) and traditional war crimes.
The success or failure of international law depends on countries’ mutual observance of conventions they have signed.
ICC arrest warrants of international figures have been issued with varying results, with signatory states of the Rome Statute making their own decisions whether to execute them.
When an ICC warrant was issued against Russian President Vladimir Putin in March last year, for allegedly directing attacks on civilians in Ukraine and unlawfully deporting and transferring Ukrainian children to Russia, the spectacle of Putin being hauled off to The Hague was too much for those countries keen to engage with the Kremlin. Putin, for instance, was assured by Mongolia when he visited this year that he would not be arrested, despite the country being a party to the ICC.
Putin exercised caution regarding the BRICS meeting in Johannesburg last year, probably due to the experience of former Sudanese President Omar Al-Bashir.
Despite being the subject of ICC arrest warrants in 2009 and 2010, a defiant Al-Bashir, who is wanted for a string of alleged war crimes and crimes against humanity against civilians in Darfur, visited South Africa in 2015 for an African Union summit. He was ordered to stay in South Africa by judicial authorities while they considered whether to arrest him.
Bashir promptly exited, leading to a South African Court of Appeal ruling the following year that the authorities’ failure to arrest him was unlawful.
A Pre-Trial Chamber of the ICC also found that the warrant should have been executed as part of South Africa’s obligations and that Al-Bashir could not rightly have claimed immunity from arrest during his visit.
The warrants against the Israeli figures will have some practical effects.
Gallant and Netanyahu will think twice before travelling to member states of the Rome Statute, though such states will reach their own decisions on the issue.
But while it is hard to envisage these men being carted off to proceedings in The Hague — barring exceptional circumstances — the warrants have provided a boost for civil society groups in Israel and the global pro-Palestine movement.
The indomitable efforts of the not-for-profit B’Tselem human rights organisation called the ICC efforts “a chance for us, Israelis, to realize what we should have understood long ago: that upholding a regime of supremacy, violence and oppression necessarily involves crimes and severe violation of human rights”.
For the starving and dying people in Gaza, the war cannot be halted by the stern judicial eye from an international court. The influence of the global anti-war movement in terms of pressuring governments to further isolate Israel, including the cessation of arms, continues to be vital.
[Binoy Kampmark lectures at RMIT University.]