International Criminal Court (ICC) has grabbed the spotlight in the backdrop of the ongoing West Asian turmoil. ICC’s prosecutor, Karim Khan requested that the court issue warrants against leaders of Israel— Benjamin Netanyahu and Defence Minister Yoav Gallant and leaders of Hamas— Yahya Sinwar, Mohammad Diab Ibrahim Al-Masri and Ismail Haniyeh. The arrest warrants are sought on the charges of war crimes and crime against humanity over October 7, 2023 attack on Israel and the subsequent war in Gaza.
In recent times has been lambasted for targeting leaders of the third world, and not Western powers and their allies. However, experts comment that the warrants issued that are charging both Israel and Hamas leaders is giving the impression of being balanced and even-handed.
Under international law, head of state are immune from criminal proceedings at any foreign and international court. However, at the ICC no head of state can claim immunity. It’s statute provides no exemption from criminal responsibility. It was because of this provision that the court, in 2023, issued an arrest warrant against Russian President Vladimir Putin for his role in the Ukraine-Russia war.
Like Russia, Israel is also not a member of the ICC. Thus, comes the questionings whether ICC can issue warrants or not. ICC’s jurisdiction in this case is that Palestine is a state party to the court. Thus, ICC can exercise its territorial jurisdiction.
This can be elucidated as that if a crime is committed on the territory of a state party to the ICC, the court can exercise its jurisdiction on the crime, even if it is committed by people belonging to a state that isn’t its member. Therefore, the crimes committed by Israel in Gaza falls within the ICC’s jurisdiction. Similarly, Hamas’ conduct in Israel falls within the court’s jurisdiction, even though Israel is not a member of the ICC.
The prevailing track record of the ICC has not been encouraging, especially regarding heads of states. Case studies from African continent proves that why ICC is failing to do its job. For instance, Omar al-Bashir, Sudanese former President. ICC issued an arrest warrant against him in 2009, when he was the president of Sudan. In 2019, he was ousted from office in a military coup. However, he has still not surrendered himself to the court.
Another example stems from other spectrums, like the cases of William Ruth, incumbent President of Kenya and his predecessor, Uhuru Kenyatta. Both were accused of committing crime against humanity, but the court dropped the charges and abandoned the case altogether.
A similar pattern was witnessed when ICC issued an arrest warrant against Simone Gbagbo, the former first lady of the Ivory Coast, but the ICC withdrew its charges. Likewise, in the high voltage turn of events, ICC issued arrest warrants against Russian head of state, Putin, which has certainly limited his international travels, however, his surrender is highly unlikely and his complete disregard shows the ICC has been reduced to an international body who is on the verge of becoming redundant.
Keeping aside the appalling history of ICC for a moment, and focusing on the issue at hand, which is the application for arrest warrants against Israel. If ICC is successful it would have significant implications on three grounds.
Fore mostly, if the arrest warrants are issued by the court then it would a diplomatic and legal setback for Israel, who is already fighting on multiple fronts. The situation would definitely be dire for Israel. Secondly, Netanyahu’s travel and outreach would be curtailed to the countries who are members of the ICC and would be under the legal obligation to arrest him. Thirdly, it would send out a signal and an indication that international law is not a hapless or a washed out weapon that is failing miserably to hold the powerful accountable.
The ICC has an opportunity to change its declining stature and restore its credibility and legitimacy as one of the custodian who will upheld the sacrosanct international law in the eyes of the world.
