Can the ICC Finally Gain Credibility?

TRANSCEND MEMBERS, 13 May 2024

Richard Falk | Global Justice in the 21st Century – TRANSCEND Media Service

13 May 2024 – A different version of this opinion piece was published in Middle East Eye on 7 May 2024. Nothing substantive has happened in the intervening weeks, but I wanted to call more explicit attention to the crude efforts by Netanyahu to call openly for the exertion of pressure on the ICC by the United States and other ‘democracies,’ seeking to induce the ICC rejection of this Global South attempt to criminalize Israel’s use of force, purporting to a defensive operation justifiably seeking the destruction of Hamas and the release of hostages seized in the Hamas attack on 7 Oct. Neither apologists nor critics have yet acknowledged the possibility that the genocidal fury of Israel’s response was partly motivated by the Greater Israel vision of the extremist coalition government headed by Netanyahu that has been governing Israel since the start of 2023, or more than nine months before the Hamas attack. This construction of the events does not seem to alter its criminal character one way or the other, but it does affect its political and moral interpretation, thereby helping us understand why Israel embarked on such an alienating course of action ignoring several alternatives if restored security was truly its dominating motivation.

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Taking the ICC Seriously: Who Would Have Thought Netanyahu Would Lead the Way

A Shaky Start for the ICC

Since its establishment in 2002 the International Criminal Court has struggled to find a path to legitimacy. Its establishment was a triumph for the Global South in extending the potential reach of international criminal law, although it was limited from the outset by its existence being situated outside the formal UN framework and by the failure of the geopolitical ‘big three’ of the US, China, and Russia to join, and in relation to present concerns, by Israel’s refusal. The ICC does have 124 members including the liberal democracies in Western Europe, all states in South America, most in Africa, and  many in Asia. Despite this wide representation it has struggled throughout its existence for recognition, influence, respect, and legitimacy.

In its early years it was blamed for focusing its activities on the alleged wrongdoing of sub-Saharan African leaders, suggesting a racialist bias. Then later on, in relation to US and Israel’s alleged crimes in Afghanistan and Occupied Palestine, the ICC prosecutor sat on the files containing abundant evidence justifying at the very least, diligent investigations to determine whether indictments and prosecution were legally warranted, and by doing nothing, an impression formed that the ICC was so weak that it could not hope to resist geopolitical, Western backdoor manipulations. ICC inaction in this instance was partly attributed to the radical ultra-nationalism of the Trump presidency that had the temerity to impose personalized sanction on the prosecutor of the ICC should the tribunal open a case against either the US or Israel.

The story goes on, but with new twists. When Russia attacked Ukraine in early 2022, the ICJ was called upon by the NATO West to act with unaccustomed haste. It obliged by expediting its procedures to move forward on an emergency basis a determination as to whether Putin and others should be immediately indictment for war crimes. This unusual request for haste again appeared to serve the interests of the West, again somewhat racialized by the fact that ICC activism was on behalf of a white, Christian victim of alleged war crimes, and had never before been so enlisted. The ICC obliged, including issuing arrest warrants for Putin and a close assistant, confirming the suspicion that it could be bullied by even non-parties to the Rome Statute that state adhered to if seeking status as parties. Such haste with respect to Russia has not evident with regard to the far greater urgency, given the magnitude and severity of the unfolding humanitarian catastrophe in Gaza in the context of controversial happenings during the last several months. To date the ICC has withheld a response to the legal initiative of Chile and Mexico to enforce the Genocide Convention on the Prevention and Punishment of the Crime of Genocide.

These governments were seeking an ICC investigation and appropriate responses to Israel’s apparent gross violations of the Genocide Convention committed in the course of carrying out its retaliatory attack on Gaza after October 7. Israel’s disproportionate response seemed designed from its outset to ignore the civilian innocence of the Palestinian people in Gaza in a prolonged orgy of collective punishment, itself a violation of Article 33 of the 4^th Geneva Convention.  This difference between the ICC response times in relation to Ukraine and Gaza reinforced the impression of double standards in the tribunal’s treatment of allegations of international crimes. In this instance, it was inevitable that the ICC politicized reputation would be contrasted with the laudable efforts of ICJ to do what it could do by way of declaring the relevant law, although hampered by its inability to coerce compliance by Israel or enforcement by the UN.

The ICJ and ICC: A Performative Comparison

Against this background, it was inevitable that the ICC would be widely viewed as a weak institution, above all by not initially obtaining participation or cooperation of such important states as the US, Russia, China, and of course, Israel. In this regard, the ICC was most unfavorably compared to the International Court of Justice (ICJ) to which all members of the UN were automatically parties. The ICJ was widely respect for maintaining a high degree of professionalism in assessing the merits of legal disputes referred to it for adjudication, consistently cautious about encroaching upon sovereign rights of international states.

This positive reputation of the ICJ was greatly enhanced by its near unanimous Interim Orders of January and March 2024 granting several Provisional Measures requested by South Africa to impede Israel’s behavior that seemed to lay a plausible basis for concluding that Israel would in the future be found guilty of ‘genocide’ in Gaza. Israel was also legally ordered to allow humanitarian aid to reach Palestinian civilians without interference given the emergency conditions that existed. Such order would apply at least until a final judgment on the merits of the genocide contention was reached by the ICJ after responding to further oral and written pleadings by the parties. This process was expected to last for several years, reducing the existential relevance of the ICJ judgment as the killing would have stopped long before the Court had time to rule. The decision would still have jurisprudential value as an authoritative interpretation of the crime of genocide despite geopolitical support given to Israel by important UN Member States. A belated ICJ judgment  might also be widely welcomed internationally as giving rise to preventive and early response mechanisms in anticipation of future genocides.

Despite the cautious legal professionalism of the ICJ a nearly unanimous panel of the seventeen judges found Israel sufficiently responsible for action that made it ‘plausible’ to fear genocide sufficiently to grant Provisional Measures in response to South Africa’s request. [Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel, ICJ Orders, 192, 20240126 & 192 20240328, ProvMeasures)]; [see also the less jurisprudentially inhibited systematic assessment of Special Rapporteur on Occupied Palestine for the UN Human Rights Council, Francesca Albanese, ‘Anatomy of a Genocide,’ A/HRC/55/73, 25 March 2024].

These orders legally required Israel to take a variety of steps to stop engaging in what was plausibly viewed by the ICJ as genocidal behavior including interference with efforts to deliver food and medicine to starving and desperate Palestinians huddled together in dangerously crowded collective misery throughout Gaza, and not only in the small city of Rafah on the Egyptian border. The prospect of bloody extensions of genocide continue at this point to be daily pledged by Israeli leaders poised to attack Rafah and put the finishing touches on an assault defiantly directed against the moral sensibilities of humanity as well as the life prospects of Palestinians. In the process of proceeding with its Rafah attack, Israel so far more openly refused US overt and covert pressures than did the ICC, which in the past and perhaps will again in the present bend to the will of the Global West.

A Redemptive Moment for the ICC?

If asked even a week ago, I would have said that Bibi Netanyahu would have been the very last person on the planet to come to the institutional rescue of the ICC, although in indirectly doing so he chose a backhanded way. Netanyahu leaped to denounce the ICC after leaked rumors suggested that the Court was on the verge of issuing arrest warrants naming Netanyahu, the Minister of Defense, Yoav Gallant, and Army Chief of Staff Herzl Halevi. Somehow this prospect so disturbed Netanyahu that he chose to go on the offensive in advance of any formal action. His five-minute video tirade against the ICC is worth watching by everyone—

https://x.com/netanyahu/status/1785362914519519597?s  1-–if only to get a sense of just how potentially formidable the ICC might become if it performs as it should. If it takes Netanyahu to shame the ICC into finally doing its job, so be it.

At the same time Netanyahu’s gross distortions of what was happening in Gaza were extreme enough to provide valuable material to late night TV humorists if their purpose was to whitewash over six months of unprecedented humanitarian catastrophe imperiling the survival of the long much abused civilian population of Gaza.  Israeli behavior is so macabre as to beyond the realm of good-natured, apolitical comedy, or even political satire. It offer more of an occasion for weeping and mourning the lost and ravaged lives, and devasted cities, hospitals, places of worship, schools, and UN facilities.

It is within this setting that the ICC seems to have been given an opportunity to act finally in accordance with its mandate, redeem its reputation for spinelessness, and strike a symbolic blow in the increasingly worldwide struggle to stop Israel’s genocide in Gaza. It is technically possible and undoubtedly politically tempting for the prosecutor to disappoint these expectations by limiting ICC action against Israeli and Hamas leaders to their alleged pre-October 7 crimes. Such an evasion would be within scope of the 2015 initiative of Palestine, a party to the Rome Statute, which was initiated in such a manner that any crime after 2014 was potentially indictable. Such an evasion would be a double disappointment for those seeking to increase pressure on Israel to accept a ceasefire followed by a series of restorative acts that could include redress, reparations, accountability, and reconstruction punitive directives.

We are left with the puzzle of why Israel’s reaction to the ICC, in view of its low institutional esteem, was seen as so much more threatening to the Israeli leadership than the more focused directives of the far more established ICJ. Could it be that the criminal character of the ICC and the personal nature of arrest warrants pose more of a threat than the prospect of a mere legal ruling? It is of course relevant to note that the ICJ is not a criminal tribunal and possesses authority only to assess legal disputes between sovereign states and to give legal ‘advice’ in response to requests by organs of the UN.

Netanyahu phrased his key argument against the arrest warrants as posing a mortal threat to the right of democracies to defend themselves against their terrorist enemies, whether regime or non-state actor, singling out Iran.  Such a view, reverses the perceptions of peoples throughout the world excepting those governments and right-wing elements that support Israel in the Global West and the hardest core overseas Zionist zealots. Increasingly, even in the strongholds of Zionist influence, softer versions of Zionism and more independent Jewish voices are siding with the pro-Palestine protesters, reacting against the stark reality of genocide.

A Concluding Remark

We should all know by now that Israel has no intention of complying with international law no matter what the source of authority. In this sense, the importance of the ICJ and potentially, the ICC, is to strengthen the growing tide of pro-Palestinian sentiment around the world, and an emerging consensus to strengthen civil society solidarity initiatives of the kind that contributed to the American defeat in Vietnam despite total battlefield military superiority and that later doomed the South African apartheid regime. In this regard, the utterances of the most influential international institutions entrusted with interpreting international law have more of a behavioral impact in high profile political situations such as exist in Gaza, than does do either the ICJ or ICC, and for that matter, than even the UNSC. Governments may defy legal authority, while civil society is mobilized to implement its conclusions if they seem to reinforce moral and political convictions.

Once again if the Palestine people ever do finally realize their basic rights, it will be thanks to the resistance of those victimized as reinforced by the civil society activism of people everywhere.  It may be in launching his vitriolic attack on the ICC, Netanyahu was subconsciously delivering a mendacious sermon to the aroused peoples of the world who are refusing to heed such self-serving hyperbole.

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Prof. Richard Falk is a member of the TRANSCEND Network, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Power Shift (2016); Revisiting the Vietnam War (2017); On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (2019); and On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019). He is the author or coauthor of other books, including Religion and Humane Global Governance (2001), Explorations at the Edge of Time (1993), Revolutionaries and Functionaries (1988), The Promise of World Order (1988), Indefensible Weapons (with Robert Jay Lifton, 1983), A Study of Future Worlds (1975), and This Endangered Planet (1972). His memoir, Public Intellectual: The Life of a Citizen Pilgrim was published in March 2021 and received an award from Global Policy Institute at Loyala Marymount University as ‘the best book of 2021.’ He has been nominated frequently for the Nobel Peace Prize since 2009.

Go to Original – richardfalk.org

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