Shortcuts / 13 June 2024

The International Criminal Court

What is the ICC?
The ICC is the world’s first permanent court that has the power to investigate and prosecute individuals – including world leaders – with serious crimes like genocide, war crimes and crimes against humanity. 

Got it. And how does it work?
It operates under a treaty known as the Rome Statute, signed by 124 states, including Australia, the UK, the European Union, and also Palestine – which gives the court jurisdiction over Gaza. 

So the whole world hasn’t signed up?
No – the US and Israel, along with China, Russia and some others have refused to ratify the treaty, meaning they don’t recognise or abide by its terms. 

Why isn’t America a member?
The US helped plan the ICC, but when it came to accepting it as a world authority, political experts say the US baulked because it saw it as conflicting with its citizens’ constitutional rights.

When does the ICC take action? 
The court sees itself as a last resort and only steps in when countries are unwilling or unable to prosecute someone. It doesn’t have its own police force, so it relies on cooperation with national police to make arrests, freeze assets, and enforce sentences.

Is it part of the United Nations?
No. The ICC is in The Hague in The Netherlands, like the United Nations (UN), but it’s independent. However, it does have a cooperation agreement in place so the UN can grant it jurisdiction where needed, which has been done in cases against leaders in Libya and Sudan. 

Tell me more…
The court has targeted some brutal dictators like Libya’s Muammar Gaddafi, Ugandan warlord Joseph Kony and military leader Bosco Ntaganda from the Democratic Republic of Congo, who was sentenced to 30 years in jail in 2019 for murder, rape, and using children as soldiers. In 2023 it also issued an arrest warrant for Vladimir Putin for deporting Ukranian children to Russia during its invasion of Ukraine.

Sounds like it’s achieved a lot…
While it’s seen some success, the ICC has also copped some criticism because, in 22 years, just 31 cases have come before it. Ten of those resulted in convictions and 4 were acquitted. And most of the charges have been against leaders from Africa – so it’s been accused by the African Union of having a bias. More widely though, political commentators say it’s in danger of being dismissed as a bit of a toothless tiger and more symbolic than effective.

Are there other international courts?
There are, but they have different jobs from the ICC. One that Squizers might’ve heard of is the International Court of Justice (ICJ). It is part of the UN and exists to resolve disputes between countries, whereas the ICC is there to prosecute individuals.

Who is the ICC pursuing now?
The ICC’s Chief Prosecutor Karim Khan has applied for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant – as well as Yahya Sinwar, who leads Hamas in Gaza, and two other senior Hamas leaders. Khan says there’s evidence to prove they’re responsible for war crimes and crimes against humanity committed on and after 7 October last year in Israel and Gaza. 

That sparked the latest conflict, right?
Yes. That was the day Hamas militants attacked Israel, killing an estimated 1,200 people and taking around 250 Israelis and some foreigners hostage. Israel then responded by declaring war on Hamas, and in the 8 months since, reports say approximately 36,000 Palestinians have died in the Gaza Strip due to the conflict. Blocked borders and dangerous conditions have made it very difficult for aid organisations to get supplies into Gaza, which has resulted in widespread famine. This has prompted the UN to label the situation a humanitarian disaster.

Is that why the ICC has stepped in?
It’s a big part of it. In the arrest warrant application, the ICC claims Israel has been using the starvation of civilians as a method of warfare, as well as intentionally targeting and willfully killing Palestinian citizens – which Khan says amounts to crimes against humanity. And on the Hamas side, the court has accused the militant group of murder, taking hostages, rape and torture.

How have Israel and Hamas responded?
Israel denies the claims. They say they’ve been screening incoming aid for weapons rather than completely blocking it at Gaza’s borders and that they’ve never deliberately targeted civilians. And Hamas wasn’t happy about being compared to Israel, who they view as their “executioner.”

So, what happens next?
The evidence gathered by Khan’s office is before a judge to be assessed before permission to issue the warrants is either given or denied – and this could take weeks or even months. 

How have world leaders reacted?
The ICC’s actions have ignited a heated international debate between world leaders as it’s the first time a world leader so closely aligned with the West has come in its sights. Netanyahu called the application for his arrest “a moral outrage”. He claims it’s undeserved because Israel is defending itself against Hamas, which he calls “a genocidal terrorist organisation that perpetrated the worst attack on the Jewish people since the Holocaust”. 

And where does America stand?
Firmly beside Israel. US President Joe Biden called the ICC’s actions “outrageous”, and he said there was “no equivalence between Israel and Hamas”.

What about our PM?
Anthony Albanese took a neutral stance, saying he wouldn’t be drawn into court proceedings that didn’t directly involve Australia. That saw him criticised by Coalition Leader Peter Dutton, who said that by not backing up the US, Albanese was “damaging international relationships with like-minded nations.”

Can the ICC force Netanyahu to face trial?
The short answer is no… But it’ll severely restrict his travel plans because it means he’ll risk arrest if he enters any of the 124 ICC member countries. Experts say it’s unlikely he’d put himself in that position. It’s more likely that by being put in the same category as Putin and other dictators by the ICC, Netanyahu could be further ostracised from the international community – even with US support.

Will that influence his decisions in Gaza?
No, it doesn’t seem so. Even in the face of mounting international pressure to agree to a ceasefire in Gaza, Netanyahu says he’s not concerned about his own future, only that of Israel, saying, “I’ll do what I have to do to finish this war.”

Is he facing any opposition in Israel?
Yep. While Netanyahu is Israel’s longest-serving leader, cracks have formed in his coalition government. Clashes over his lack of a post-war plan saw the resignation of his centrist ally Benny Gantz from his war cabinet this week, with Gantz calling on him to set an election date and “not tear our people apart.”

It seems Netanyahu’s under pressure from all sides
He sure is, and the UN Security Council also voted in favour of a permanent ceasefire proposal brought by the US earlier this week. But whether that’s effective in bringing closure to the war in Gaza – and whether the ICC decides to go ahead and order the arrest of Netanyahu, along with the other leaders named in their application, remains to be seen.

Squiz recommends:
Listening: This ABC Global Roaming: Who’s Afraid of the ICC? episode gives a good outline of the proposed arrest warrants for Israeli and Hamas leaders and what could happen next.

Reading: This BBC article What does the ICC do? is a good explainer of how the court was formed and how it functions.

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