Gaza crimes test international justice

Karim Khan, chief prosecutor of the International Criminal Court (ICC), wants to arrest the Prime Minister of Israel, Benjamin Netanyahu and his Minister of Defense, Yoav Gallant – as well as the leadership of Hamas – because he believes that they may be “criminally responsible” for war crimes and crimes against humanity in Gaza. At the same time, the United Nations International Court of Justice (ICJ) has called on the Jewish State to take provisional measures to prevent a genocide against the Gazans. It is the same war, with the same victims, but the two courts handle different international treaties. How are both judicial approaches explained?

Both located in The Hague (Netherlands), about 12 minutes away by bicycle, the two bodies address one of the thorniest cases in recent international justice, taking into account the difference between the international responsibility of a State and that of An individual.

In the case of Gaza, South Africa has sued Israel before the ICJ – which resolves disputes between States – with the Convention on the Prevention and Punishment of Genocide (1948) in hand. Pretoria observes “genocidal acts” against Palestinians. The Jewish State rejects it, and although States cannot be criminally responsible; “Israel must defend itself from the accusation of committing the worst of crimes in Gaza, thereby violating its obligations under the Convention,” explains Asier Garrido Muñoz, former ICJ lawyer, on the phone.

Does the Genocide Convention need an update? According to the same expert, the Gaza case tests its contemporary relevance because not everything is documented or expressed openly, as the Nazis did with the Holocaust. Or like the Hutus against the Tutsis in Rwanda. Hence, a very high evidentiary standard is required, regardless of whether one of the parties denies it. Garrido Muñoz believes it is inadvisable to update the 1948 Convention because then “there was maximum awareness of the seriousness of what happened in World War II and the need to prohibit genocide.” “I suspect that something like this does not exist in the same way today in the international community. Even more, some countries could take advantage of the opportunity to sweeten it,” he warns.

The Prosecutor’s Office of the International Criminal Court has not included genocide in the request to the judges to authorize the arrest warrants for Netanyahu and Gallant. Israel, on the other hand, is not a member of the ICC. However, it is the first time that this court has brought a case against individuals from what is understood to be a liberal democracy (where the rule of law governs and the judicial system is independent).

Risks for the TPI

“It is an important moment in contemporary legal history,” says Cedric Ryngaert, professor of International Law at the Dutch University of Utrecht, “because the ICC Prosecutor’s Office acts against an ally of the West.” The court therefore runs the risk of losing the support of “countries that now support it with their funds,” he adds. The essential thing is to know whether the ICC will be able to demonstrate “that Israel is genuinely unable – or unwilling – to investigate and prosecute on a national scale,” Ryngaert continues. And he will have to do so “to also respond to criticism that [el TPI] “It only persecutes poor and African countries: the Global South.”

The prosecutor mentions in his letter to the judges that there is a policy of the Israeli State against the Palestinians with systematic attacks. “That means you can’t go after a specific soldier, but rather target those most responsible,” Ryngaert says. For its part, the Palestinian State is a member of the ICC, and when Gaza’s political future is clear, it should seek out and arrest the Hamas leadership, if the court’s judges approve the arrests.

The ICC has 124 member countries, which do not include China, Russia or the United States, although the latter has supported prosecutor Khan in his investigations into the war in Ukraine. American support was maintained when, in March 2023, Khan called for the arrest of Russian President Vladimir Putin for “illegal deportation of Ukrainian children.” Putin now has more difficulties traveling because the countries that are part of the ICC are obliged to detain him. The same would happen with Netanyahu and Gallant.

For William Schabas, professor of International Law at the British University of Middlesex, the Israeli prime minister could go to Washington, one of his greatest allies. “But he would show the double standard of the American government, which is firm in the case of Putin.” In his opinion, Khan immediately investigated the crimes committed in Ukraine – “When we talk about Ukraine, we mean the Global North.” [los países desarrollados]”, he points out, – and has perhaps been less enthusiastic about Gaza: “But the prosecutor has done it. He has asked permission for the Israeli prime minister to be detained.”

For his part, Garrido Muñoz indicates that the ICC Prosecutor’s Office will take into account Israel’s policy as an element of proof of the criminal responsibility of Netanyahu and Minister Gallant: “Both act at the same time as organs of the State and as individuals who can be international criminal responsible in the exercise of their functions.

The Rome Statute, which structures the work of the court, allows a new arrest warrant to be presented if it is considered that there are reasonable grounds to believe that the Israeli Prime Minister and the head of Defense may be responsible for a genocide in Gaza. But it is very difficult to prove the intention to destroy a national, ethnic, racial or religious group. “Khan wants the judges to approve the arrest warrants,” explains Ryngaert, “it could happen that if he opts for genocide they will reject them, at least in that position.”

The two courts are in the first phase of their cases. What will happen if the first addresses the substance of the matter and concludes that there are indications of genocide? For Ryngaert there would be a discrepancy if the judges of the United Nations contemplated genocide and those of the criminal court – if this charge were ultimately presented – rejected it. Garrido Muñoz recalls that the fact that the ICC Prosecutor’s Office has not included it in its request, “will be invoked by Israel to say that South Africa’s claim is unfounded.” In any case, “if the UN Tribunal closes its case earlier, its assessment of the evidence will be very important for [el fiscal] Kahn and can influence his procedural strategy,” he concludes.

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