The Prime Minister is reported to have been troubled by the International Criminal Court prosecutor’s decision to seek arrest warrants for two Israeli and three Hamas leaders. The “sense of an equivalency between the democratically elected leaders of Israel and the bloodthirsty terrorists that head up Hamas” is what is troubling our Prime Minister.
The International Criminal Court (ICC) began operations in 2002; the International Court of Justice (ICJ) succeeded the Permanent Court of International Justice in 1946. Both are located in The Hague, Netherlands. The two courts are distinct in that the ICJ resolves disputes between states, whereas the ICC prosecutes individuals accused of having committed crimes.
The Rome Statute of the ICC has been signed and ratified by 124 countries. An additional 31 countries have signed but not yet ratified the statute. Four countries, Israel and the United States in 2002, Sudan in 2008, and Russia in 2016, have withdrawn their application and informed the United Nations that they are no longer bound by their signatures.
The ICC’s scope is limited to genocide, crimes against humanity, war crimes, and crimes of aggression. Its jurisdiction is limited to acts committed on the territory of signatory states. The cases brought before the ICC since its inception affected individuals accused of acts in troubled countries at the margins of the world’s major powers.
The ICC’s first high profile case is the warrant issued for the arrest of Russia’s Vladimir Putin on two counts of war crimes. Russia is no longer an ICC member, but the alleged acts were committed on the territory of a member state: Ukraine. Israel is no longer a member of the ICC, but the Palestinian Authority, where the offences are claimed to have been committed, is.
The application for warrants to arrest Israel’s Prime Minister, Benjamin Netanyahu and its Minister of Defence, Yoav Gallant, is a precedent; never before have warrants for the arrest of serving democratically elected politicians of a state aligned with the West been applied for by the ICC’s prosecutor.
The symbols of justice are a scale, a sword, and a blindfold. They symbolize reasonable doubt beyond which the guilt of an accused must be proven, sanctions appropriate to or commensurate with the act committed, and being blind to the identity of the accused. In the case of the Israeli and Hamas officials, the prosecutor must provide the court with convincing evidence that offences within the ICC’s jurisdiction have been committed, and that the individuals named bear responsibility for said offences. The arrest warrants do not establish guilt. Guilt or innocence will only be determined if and when the matter proceeds to trial. A trial is still a long way off.
The relevant equivalency is in the allegations that unlawful acts of war were committed by Hamas on October 7, 2023, and by Israel in its response to the Hamas attack. The prosecutor’s application for warrants to arrest the five individuals must document reasoned belief that the named individuals are responsible for the acts committed. For justice and the rule of law to prevail, the prosecutor cannot consider the social, the economic, or the political status of any one of the five named individuals.
If our Prime Minister believes that the ICC’s prosecutor should have considered the Israelis political status before seeking a warrant for their arrest, then I am troubled.
