War on Gaza: The ICC must seize this moment to hold Israel accountable by Richard Falk

Since its establishment in 2002, the International Criminal Court (ICC) has struggled to find a path to legitimacy.

Its creation 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 outside the formal UN framework, and by the failure of the geopolitical “big three” (the US, China and Russia) to join. In relation to present concerns, it is also limited by Israel’s refusal to sign up to the court.

Despite its wide representation, including 124 member states, the ICC has struggled for recognition, influence and legitimacy.

In its early years, it was blamed for focusing its activities on the alleged wrongdoings of African leaders, suggesting a racialist bias.

Later on, in relation to the alleged crimes of the US in Afghanistan and Israel in occupied Palestine, the ICC sat on files containing abundant evidence justifying, at the very least, diligent investigations to determine whether indictments and prosecution were legally warranted.

Because the court did nothing, an impression was formed that the ICC was too weak to resist western pressures. Its inaction was partly attributed to the radical ultra-nationalism of the Trump presidency, which had the temerity to impose sanctions on its prosecutor in an effort to prevent investigations of the US and Israel.

The story goes on, but with twists. When Russia attacked Ukraine in 2022, the ICC was called upon by Nato to act with unaccustomed haste. It obliged by expediting its procedures to move forward with a determination over whether Russian President Vladimir Putin should be indicted for war crimes – again seeming to serve the interests of the West – and swiftly issued an arrest warrant.

Reputation for weakness

Such haste has not been evident in the ICC’s response to the legal initiative of Chile and Mexico over the unfolding humanitarian catastrophe in Gaza, with the two governments asking the court to investigate Israel’s violations against civilians.

As yet, the ICC has not responded to this urgent initiative, although it is widely thought to be on the verge of doing so. The prosecutor, Karim Khan, suspected of Western sympathies, is under increasing pressure to act in the face of Gaza’s deepening humanitarian catastrophe.

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This difference in the ICC’s response has reinforced an impression of double standards in the tribunal’s treatment of allegations of international crimes.

The ICC is widely viewed as a weak institution, above all for not obtaining the participation or cooperation of key states right from the start. In this regard, it has been unfavourably compared with the International Court of Justice (ICJ), to which all members of the UN are automatically parties.

The ICJ is widely respected for maintaining a high degree of professionalism in assessing the merits of legal disputes referred for adjudication. This positive reputation was greatly enhanced by its near-unanimous interim orders in January and March, which granted several provisional measures requested by South Africa to impede Israel’s “plausible genocide” in Gaza.

Within this setting, the ICC has an opportunity to act in accordance with its mandate and redeem its reputation for spinelessness

Israel was legally ordered to allow humanitarian aid to reach Palestinian civilians without interference, at least until a final judgment on the merits of the genocide contention is reached by the ICJ, in a process expected to take several years – reducing the relevance of its judgment to a great extent.

In addition to the ICJ’s finding that Israel could plausibly be committing genocide in Gaza, the UN special rapporteur on Palestine, Francesca Albanese, recently issued a report on the “anatomy of a genocide”.

Yet, despite legal orders for Israel to stop engaging in genocidal behaviour, the prospect of its bloody continuation is pledged daily by Israeli leaders, who are poised to order an attack on Rafah and put the finishing touches on their assault against the moral sensibilities of humanity – and the survival prospects of Palestinians.

Political temptation

If asked even a week ago, I would have said that Israeli Prime Minister Benjamin Netanyahu would be the last person to come to the institutional rescue of the ICC, albeit in a backhanded way. But he leapt to respond after leaked rumours suggested that the ICC was on the verge of issuing arrest warrants naming Netanyahu, Defence Minister Yoav Gallant and army chief Herzi Halevi.

Netanyahu went on the offensive. His four-minute video tirade against the ICC is worth watching, if only to get a sense of just how potentially formidable the court could become if it performs as it should. If it takes Netanyahu to task, the ICC would finally be doing its job.

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Within this setting, the ICC has an opportunity to act in accordance with its mandate and redeem its reputation for spinelessness. It is undoubtedly politically tempting for the court’s prosecutor to disappoint these expectations by limiting the ICC’s action against Israeli and Hamas leaders to their alleged pre-7 October crimes.

Such an evasion would be a double disappointment for those seeking to increase pressure on Israel to accept a ceasefire, followed by directives on accountability, reparations and reconstruction.

We are left with the puzzle of why the ICC, with its low institutional esteem, is apparently being seen as so much more threatening to Israel than the focused directives of the far more established ICJ. Could it be that the personal nature of the possible arrest warrants spurred more of an emotional pushback?

Netanyahu said the arrest warrants would pose a mortal threat to the rights of democracies to defend themselves against their evil enemies, singling out Iran. But 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 support for Palestinian rights around the world, alongside an emerging consensus of the sort that contributed to the American defeat in Vietnam and doomed the South African apartheid regime. If the Palestinian people finally realise their basic rights, it will be thanks to the resistance of those victimised, as reinforced by the transnational activism of people everywhere.

Of particular encouragement is the eruption of pro-Palestinian protests and their frequent controversial suppression throughout the United States and in leading European countries, indicating a heightened civil society engagement with the struggle for a ceasefire and an altered approach to Israel by the liberal democracies of the West.