The International Criminal Court (ICC) in The Hague, which investigates and tries those responsible for genocide, war crimes and crimes against humanity, is facing criticism as to why it has not arrested Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, who are responsible for the massacre of 42,000 Palestinians in Gaza.
Looking at the court's previous decisions, these criticisms are not unjustified. The last arrest warrant was issued March 17, 2023, against Russian President Vladimir Putin. Russian Commissioner for Children's Rights Maria Lvova-Belova was issued an arrest warrant less than a month after the request was submitted to the court. But four months later, no decision has been taken, raising concerns about the court's credibility.
It is recalled that on May 20, 2002, Attorney General Karim Khan requested the arrest of five individuals, including Netanyahu and Gallant, as well as Hamas political and military leaders Yahya Sinwar, Ismail Haniyeh and Mohammed al-Dayf, for war crimes and crimes against humanity committed in Gaza on and after Oct. 7. In fact, the arrest warrant file submitted to the court was reviewed by a six-member international panel of impartial field experts, who confirmed that the arrest warrant was appropriate based on the evidence gathered by the prosecution. Attorney General Khan said at the time that the evidence in the case was more than sufficient for the court to issue an arrest warrant against the individuals concerned and that he expected the court to issue the warrant as soon as possible. However, despite all these legal qualifications and the time that has elapsed, the court has not yet issued an arrest warrant, leading to rumors of pressure on the court.
The truth is that the rumors of pressure should not be dismissed lightly. Attorney General Khan himself has stated that he was under pressure not to investigate Israeli politicians and not to send the warrant to the court. It will, therefore, come as no surprise if it turns out that the same forces pressuring the court's prosecutor are also pressuring the court's preliminary investigation unit.
Indeed, according to a report in the Guardian, the former prosecutor, Fatou Bensouda, was subjected to similar pressure. According to the report, former Mossad chief Yossi Cohen, who contacted prosecutor Bensouda against her will and in an inappropriate manner, threatened to harm her family and tried to dissuade her from the court's decision, announced on Feb. 5, 2021, that it had "jurisdiction over the occupied Palestinian territories." It was only later revealed that the pressure and threats against the attorney general were the reason why the investigation, which had begun at the time, was never completed.
Khan, who took over from Bensouda, has been subject to similar pressure, as evidenced by his statements to the press. He even reported that a prominent politician contacted him and told him that "the court was not set up for Westerners and their allies, but for Africans and thugs like Putin" and that "his investigation of Netanyahu will not be accepted."
Similarly, after Khan submitted the arrest request to the court, 12 members of the U.S. Congress wrote a letter to Khan publicly threatening the prosecutor, telling him, "If you target Israel, we will target you."
In addition, the words of Sen. Lindsay Graham, who spoke at a U.S. Congressional hearing on the issue after the Israeli government complained to the U.S. about the court, are also very significant in this regard. We should remember that in his speech, Senator Graham said, "If the ICC tries Israel, the U.S. will be next, and therefore Israel cannot be allowed to be tried."
Senator Graham's remarks remind us of the "Hague Invasion Act" passed by the U.S. Congress in 2002. This law, enacted to prevent the U.S., which invaded Afghanistan after 9/11, from being tried by the tribunal for war crimes and crimes against humanity committed by its soldiers in Afghanistan and later in Iraq, gives the U.S. the right to impose sanctions on the Netherlands, where the tribunal is based, and even to invade it by sending troops.
Although it is no longer possible for the U.S. to invade the Netherlands in the present circumstances, it is known that sanctions could be imposed, such as blocking aid to the tribunal or denying entry to the U.S. to members of the tribunal.
And, of course, the U.K., like the U.S., is known to oppose any investigation of Israel by the court or any request for the arrest of Israeli leaders. Indeed, during the last Conservative government led by Rishi Sunak, an application was made to the court because "the U.K. does not recognize Palestine as a state, Israel is not subject to the Rome Statute and the court has no jurisdiction in the Palestinian territories."
Fortunately, Labour Party leader Keir Starmer, who became Prime Minister in July's snap election, reversed this error and withdrew the Ministry of Justice's application, thus reversing such a mistake that would have compromised the independence and impartiality of the court.
Unfortunately, all these events lead us to believe that there is pressure on the tribunal. In fact, in an interview with CNN last week, Chief Prosecutor Khan once again reminded us that the court has jurisdiction over the occupied Palestinian territories and stated that there is no legal obstacle in this matter, and then stated that the court was late in issuing the arrest warrants. In the statements of the public prosecutor, which were published in the media today, he called on the court. He said that it would be good if it hurried up to ease the conscience of the international community and to see that international law applies equally to everyone.
As we can see, a pressure mechanism is in place, led by the U.S., to prevent the ICC from issuing an arrest warrant for Netanyahu and Gallant. Although the U.S. has no say in the court's decisions because it is not subject to the Rome Statute, it can exert direct or indirect pressure on the court through its military and economic power. But this situation is a sore spot in the conscience of the international community, especially the victimized Palestinians, and undermines confidence in law, courts and justice. On the one hand, the U.S. administration is using international courts as an instrument of pressure to punish Russia for its invasion of Ukraine, while on the other hand, it is trying to prevent any decision from being taken against Israel, which has massacred 40,000 civilians in Gaza.
So, this situation is fuelling anger and rage against the U.S. while at the same time reducing confidence in the courts. Similarly, no one expects justice from a court that is a “pawn of the U.S.” The disappearance of trust in international courts, one of the fundamental pillars of the current global system, will also call the system into question, and the U.N. may collapse and be replaced by anarchy and chaos solely to protect the occupying and genocidal Israel.
Therefore, any direct or indirect pressure on the court to prevent it from arresting Netanyahu must be stopped immediately. The court must be allowed to work and make decisions independently and impartially. Those who manipulate the court for their own interests today will have nothing to say tomorrow when another state violates international law. What is important is not the law of the strong but the strength of the law.
