Editor's note: dan perry He is the former Middle East editor and London-based Europe/Africa editor for the Associated Press, based in Cairo, and the author of two books on Israel. The views expressed in this commentary are his own. Read more his opinion on CNN.
CNN —
There are growing signs that the International Criminal Court (ICC) is considering charges against Israeli Prime Minister Benjamin Netanyahu and other senior Israeli officials over Israel's war effort against Hamas in Gaza. This could be seen as a seismic and ultimately a case of selective justice that politically aids a beleaguered prime minister.
Provided by Dan Perry
dan perry
Established in 2002, the ICC is more like a club of some 125 countries trying to make the rules, rather than a true embodiment of consensus-based “international law,” and is fairly vague to non-member states. occupies a position. countries like America and Israel.
The prosecution budget is fairly modest (about $185 million, of which only about half goes to the prosecutor's office), there have been only a handful of convictions, and the country has never prosecuted the leader of a democratic state. It has also gone after thugs from dictatorships, including Russia's Vladimir Putin, Sudan's Omar al-Bashir, and Saif, the son of former Libyan leader Muammar Gaddafi. Prime Minister Netanyahu, already a criminal defendant on corruption charges domestically, is a deeply unsympathetic figure to many, but he is not among his autocratic allies.
Israel's democracy is in question, but not Sudan's, as the West Bank and East Jerusalem, home to millions of Palestinians, have been occupied for years.
Haven't other democracies been embroiled in wars with terrorist groups that have caused so much harm to civilians as in Gaza? Obviously, they, especially the US and UK, and the coalition that fought the Iraq war, trying to eliminate al-Qaeda and ISIS, had something to do with the meltdowns in Libya and Yemen in the 2010s. But when a country has a viable legal system, like Israel, the ICC tends to try to keep things domestic.
Even if the ICC decides to abandon this tradition, there will still be huge jurisdictional questions, starting with the bizarre procedure by which Palestine was admitted to the ICC nearly a decade ago.
The courts operate on the basis of “state consent,” which means they accept only the states. Although the United Nations General Assembly granted Palestine non-member observer status in 2012, it is not recognized as a state by most major countries and economies, including the United States. (Recently, there has been growing momentum to change that long-standing reality. The United Nations has taken steps to put greater emphasis on Palestinians, and the United Kingdom has indicated, among other countries, that it would consider recognizing a Palestinian state.) ) However, in 2015, the ICC intervened. By accepting it, without consulting the Assembly of States Parties (ASP), which represents ICC member states, it implicitly decides that it is so.
Furthermore, the ICC can only deal with incidents that occur within the territory of a member state, whereas Palestine has no recognized territory, if any at all. Once again, the ICC judges decided, by a majority but not unanimous vote, that in 2021 Palestine would consist of the West Bank, Gaza, and East Jerusalem (the last of which was annexed by Israel).
This mirrors the rather random ceasefire line of 1949 that ended the war with Israel's own declaration of independence. The West Bank and East Jerusalem are areas of British Mandate Palestine that were captured by Jordan in the war, and Gaza was occupied by Egypt, but neither country currently claims rights to them.
Israelis and Palestinians themselves cannot agree. Many Israelis do not want to be involved in annexing the entire West Bank out of fear of their country's Jewish majority. Hamas, on the other hand, has little interest in these borders and claims all of Israel for the Palestinians. If the ICC indicts, the court will have made a meaningful ruling on the border.
Finally, there is the issue of price. To justify war crimes charges against Israeli leaders, a court would have to find that Israel's actions were disproportionate to what was needed in response to the October 7 Hamas attack.
No matter how the court interprets this, e.g. by claiming that it is only looking at specific crimes and not the whole, it has been argued by many critics that this (in addition to being selective) It will be perceived as subjective.
And there will be no escape from incorporating Hamas's explicit policy of using Gaza residents as human shields. Although little is said about this in the media, established war crimes jurisprudence makes clear that civilian installations lose their protected status when they are effectively converted into military installations. (Journalists do not have access to active fighting areas in Gaza, so it is difficult to assess how actively Hamas uses civilians as human shields, but the terrorist organization does not have strongholds in heavily populated areas. (known for putting children in the hospital and widely criticized for taking advantage of hospitals) and schools too. )
If courts ignore this, terrorists around the world will buy into the idea that after committing atrocities, they can hide behind human shields and risk international arrest warrants for their pursuers. . While the use of human shields is not a new war tactic, it is rarely seen on this scale in situations where terrorists lurk underground in vast networks of tunnels, and the ICC risks encouraging the practice.
It would be foolish if the ICC did not indict Hamas itself.
dan perry
Furthermore, it would be foolish if the ICC did not indict Hamas itself. According to the UN's own definition in the 1948 Genocide Convention, Hamas' October 7 invasion was accompanied by a stated objective to kill the maximum number of Israelis, followed by a promise to kill again. It is one of the more typical acts of genocide in modern times. We care a lot about intent. There is nothing in the ICC's own rules that limits its jurisdiction to officials, and indeed Hamas is certainly the effective government in Gaza in any case until an Israeli invasion begins.
Courts have a great deal of discretion, so politics is inevitable. Is Karim Khan, the highly respected British chief prosecutor, feeling pressured to do his part in increasing pressure on Prime Minister Netanyahu? Last week, he pushed back against pressure from Israel to block potential arrest warrants for the leaders.
It touches on strategic rather than legal issues. Although Prime Minister Netanyahu does not support forging a path to a Palestinian state, this would achieve another (perhaps implicit) goal of countering Iran and balancing Russia with the West, Sunnis, and Israel. Perhaps necessary to influence US President Joe Biden's grand plan to establish an axis. and China's influence in the Middle East.
Prime Minister Benjamin Netanyahu has taken these actions because his far-right coalition is blocking conditions that would restore control of Gaza to the Palestinian Authority in place of Hamas – in theory, much of Israel's territory. People have wanted this condition for a long time. This self-defeating position, along with the horrific death toll in Gaza, is a major reason why the world is tired of war.
And actually going to court is a complicated process. Israel may try to buy time or derail the process by saying it is conducting its own investigation. This may not work (Israel is not a member state, but that's the point), but it may work on the other hand (Prime Minister Netanyahu's efforts to water down Israel's independent judiciary last year (due to stalling due to large-scale protests).
After all, if Prime Minister Netanyahu had succeeded in killing the court's independence, Israel would no longer be able to claim to have its own proper jurisdiction, which is one of the triggers for the ICC's intervention.
If the ICC ends up issuing an arrest warrant for Prime Minister Netanyahu, despite all the reasons not to, the court is a strange institution with little oversight or accountability, and its decision and will give a gift to critics who accuse him of inconsistent choices. Or provide a sufficient explanation to the public.
Furthermore, there is a possibility that he is politically influencing Prime Minister Netanyahu. The same would apply, for example, if the court tried to reach a compromise and go after Israeli military personnel. Applying selective justice to Israel would run directly into Israel's already asserted claim that the incident was an anti-Semitic slur. This argument is popular in Israel, and the opposition will likely have to support it, especially if the charges extend to military leaders.
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Prime Minister Netanyahu is in a difficult situation politically and will almost certainly lose the election held today. He is dragging his feet on the war and proposals to end it, but perhaps wants to keep the government intact until the situation changes. An ICC arrest warrant would give him an effective ax and would not prevent him from even traveling to the only place he cares about: the United States.
Israel, like the region and the world, desperately wants Prime Minister Netanyahu to be gone. It would be a shame if the ICC inadvertently made it even more difficult.
