Powerful politicians often come to hate the laws that they inherit upon taking office. The survival of these rules from the past can feel to them like a bunch of long-gone or recently defeated predecessors coming back to haunt them, demanding a certain kind of behaviour which the new incumbent may well abhor—indeed, they might even have been elected on the basis of such abhorrence.
Domestic laws can at least be changed, even if they are constitutional (albeit with greater difficulty), but international law is a different matter. The local supremo is stuck with what’s there, and as renegotiation of terms is rarely an option, the only realistic choice is to “stay” or to “go”. Britain has recent experience of this: in staying (the European Convention on Human Rights) but also going (the EU). The 1951 Refugee Convention must feel much the same to many embattled leaders right now.
Israel now knows that going (or, in its case, never even joining) is sometimes not an option where international law is concerned. The International Criminal Court (ICC) was established by a treaty agreed in 1998, at the high point of end-of-history fervour. In those victorious days, liberal democracy felt confident enough to bequeath to the world an indefinite and open-ended obligation on all participating states to punish bad leaders everywhere for their war crimes, their crimes against humanity and their genocide.
Not all states did join, of course, but to date 124 have. Palestine became part of the system in 2015 and, in a ruling handed down well before 7th October 2023, a chamber of the ICC ruled (by a majority) that non-signatory Israel’s conduct in Palestine fell within its jurisdiction.
That decision laid the ground for the chief prosecutor Karim Khan’s decision in May this year to apply for arrest warrants against the Israeli leadership. Israel immediately threw a blizzard of procedural obstacles in the court’s direction, hoping no doubt to delay or prevent the next move against it. In a couple of unequivocal rulings issued on 21st November 2024, these applications have now been (one is almost tempted to say contemptuously) swatted aside, and the warrants have been formally issued.
The issuance of these warrants is often secret so as to facilitate arrests but, on this occasion, the court decided upon publicity “since conduct similar to that addressed in the warrant of arrest appears to be ongoing”. The judges also considered it “to be in the interest of victims and their families that they are made aware of the warrants’ existence.”
The charges underpinning the warrants are shocking, even in a time when we have become inured to shocking events. The Israeli prime minister Benjamin Netanyahu and his erstwhile colleague in government Yoav Gallant stand accused of “the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”
The chamber considered that there were also “reasonable grounds to believe that both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.” The court summarised this as “the war crime of starvation as a method of warfare”.
It determined that a “significant proportion” of the people of Gaza were being “persecuted” by the wholesale denial of their human rights. Humanitarian relief was only grudgingly provided, and even then, without regard to the obligations of international humanitarian law.
What happens next? Like the International Court of Justice (ICJ) in its rulings on genocide, the ICC has no capacity to make its word count: it is, as an American scholar once said of the US Supreme Court’s similar impotence, “the least dangerous branch”.
But all states who have signed up to the ICC are duty bound by article 59 of its charter to arrest anyone within their jurisdiction for whom a warrant has been issued “in accordance with its laws”. Once a state has the individual in custody, they are further bound to have the person “delivered to the Court as soon as possible”.
After the ruling, the chief prosecutor appealed to countries “to live up to their commitment to the Rome Statute by respecting and complying with these judicial orders.” He went on to say that “we count on their cooperation in this situation, as with all other situations under the Court’s jurisdiction.”
The ICC will survive allegations of antisemitism levelled against it by Netanyahu: after all, a warrant was also issued the same day for Hamas commander Mohammed Deif, and all criminals usually have reason to deplore the motives of those out to bring them to justice. More worrying is the reaction of open scorn by Hungary’s leader Viktor Orbán: if this becomes the norm, and if enforcement authorities feel unable to subvert the explicit demands of their own authoritarian leaders (even in democracies), then what future does the ICC have? What future, as a moral authority at the very least, has the ICJ?
Will these tribunals dissolve into ignored relics of the past? Will they become the preserve of the only places that continue to take them seriously—perhaps the Global South, and a few surviving social democracies that will remain intact in what we gloatingly call the First World? Or will the arrest and trial of Netanyahu and Gallant actually happen?
If it does, it may be eventually seen as a turning point, a moment when the world woke up to the dangers of national chauvinism once more. Which future prevails is, at present—entirely and disturbingly—an open question.
