Arrest warrants for Netanyahu-I

This write-up seeks to examine the effects and impacts of emerging developments in International Criminal Law. The Prosecutor of International Criminal Court (ICC) recently filed Criminal charges against Benjamin Netanyahu, the sitting Prime Minister of Israel, for the commission of war crimes, including the use of starvation as a method of warfare, targeting of civilians and restricting the human aid to Gaza. The ICC, while taking cognizance of the matter and after examining the material evidence presented before it, issued warrants of arrest of the Israeli Prime Minister.

The court ruled, “in the light of ratification of Rome Statute by Palestine State, the court is competent to proceed in the matter’’.

Although, it is early to say about the outcome of these proceedings, yet let us understand and examine the nature of allegations against the accused and possible outcomes. The allegations levelled against the accused are the following.

- War crimes in Gaza:

It has been alleged: Netanyahu and his associates used starvation as a method of warfare by placing deliberate restrictions on the supply of food, water, fuel, electricity, and medicines.

• Crimes against humanity: The civilian population, particularly children and age old people, of Gaza were targeted by denying water, electricity and food particularly when it was evident that they were non-combatants.

• Inhuman acts: The acts of war by Israel caused deaths and torture through destruction of medical facilities.

• Persecutions: People in Gaza were targeted on their identity and nationality.

• Targeting of civilians: Deliberate military actions were taken against the civilian population of Gaza.

The actions of ICC are though within the framework of Rome Statute, yet its actions may confront challenges of jurisdiction and absence of action by the Israeli authorities.

1. Jurisdiction: Israel may argue the ICC lacks jurisdiction because Israel is not a party to the Rome Statute and to the dispute of Palestinian statehood.

2. Absence of intervention by the Israeli courts: Israel preempts ICJ involvement by conducting investigations into the alleged crimes. However, its failure to do so conferred jurisdiction on ICC to proceed in the matter.

Political and geopolitical implications

1. Enforcement challenges:

• The ICC lacks its own enforcement mechanism and depends on member states to execute arrest warrants. Countries with strong ties to Israel, like the United States and Hungary, have already indicated that they will not cooperate with ICC as they do not recognize the institution; it undermines the ICC’s authority.

• Non-cooperation from powerful allies also highlights the ICC’s limitations and its reliance on political will of the world community.

2. International relations:

The charges against Netanyahu could strain Israel’s diplomatic ties with ICC member states.

• A number of countries support the ICC’s investigations; these states emphasize on accountability of rogue nations. It may lead to a deepening divide between Israel and other countries.

3. Developing precedent for accountability:

• A conviction of a sitting or former head of government like Netanyahu can set a historic precedent for holding rogue leaders accountable for their illegal actions and atrocities.

Impact of ICC’s orders:

1. Ending impunity:

The ICC action aims to end impunity for those who commit inhuman acts of atrocities.

2. Ringing the bell of justice:

The International Law requires the rights of war crime affectees as recognized by the principles of Nuremberg Trials which were adopted by the UN in 1946.

3. Global security:

The ICC being an arm of the United Nations is contributing towards global security and peace.

4. Past precedents:

The ICC’s investigations into the Benjamin Netanyahu affairs is significant though, yet not without precedents. Political leaders have previously been held responsible for their illegal actions by international courts.

Examples:

1. Slobodan Milosevic (Yugoslavia):

• Charges: Milosevic was indicted by the International Criminal Tribunal for war crimes, crimes against humanity, and genocide during the Balkan wars.

Result: He was arrested and extradited to The Hague in 2001, but he died in custody before a verdict was reached. The action of the ICC amid complex geopolitical challenges demonstrated the international community’s commitment and ability to prosecute high-ranking officials who commit atrocities.

2. The Omar al-Bashir case:

Charges: The ICC issued arrest warrants against al-Bashir for genocide, war crimes, and crimes against humanity in Darfur.

• Result: Despite the warrants, al-Bashir traveled to several countries without being arrested. After being ousted in 2019, Sudan indicated willingness to cooperate with the ICC, but no transfer has yet occurred.

3. The Charles Taylor case:

• Charges: Taylor was tried by a Special Court for Sierra Leone for war crimes committed during the Sierra Leone Civil War.

Result: Convicted and sentenced to 50 years in prison in 2012. Where international courts and states collaborate, the potential for accountability increases.

4. The Uhuru Kenyatta case:

• Charges: Crimes against humanity related to postelection violence in Kenya.

• Result: Charges were dropped due to lack of evidence.

• Limitations: It demonstrates the difficulties in sustaining a trial without state cooperation.

Process followed by the ICC

1. Investigation and charges:

• To establish whether there exist grounds to believe occurrence of a crime within court’s jurisdiction, the ICC

Prosecutor gathers evidence.

• The Complaint to the court has to establish “reasonable grounds” against the accused, with reference to charges of war crimes and crimes against humanity.

2. Implementation of the arrest warrants:

The ICC relies on cooperation extended by member states for execution of warrants. Member states are under an obligation to comply.

• In Netanyahu’s case, Several ICC member states have already shown non-cooperation, weakening the enforcement prospects, but many other states have shown commitment to enforce ICC orders..

3. ICC trial process:

• The accused must be present in The Hague for a trial to proceed. This includes pre-trial confirmation of charges, the main trial, and sentencing if convicted.

• Trials are conducted with strict adherence to international legal norms, including the presumption of innocence and the right to defend.

4. Challenges of harmonization:

• Where a country itself conducts credible investigations into the allegations, the ICC restraints itself as the ICC acts as a court of last resort.

Undertones for Netanyahu

1. Challenges of international politics:

• ICC proceedings and court’s legality has been challenged by the US and Hungary. They oppose the ongoing proceedings. These challenges highlight the limitations of international law and in its enforcement.

2. General disagreement:

3. • The ICC faces pressures but the court maintains its impartiality while reviewing the collection of evidence in politically charged cases, particularly where state cooperation is absent.

4. Impact of such prosecutions:

• The actions of ICC provide a powerful message regarding accountability. These cases provide an opening for apprehending the defiant leaders particularly those who can be successfully prosecuted.

ICC Proceedings and potential legal Defenses for the accused:

An accused can employ several legal and procedural defenses to counter the ICC charges. The accused can challenge both the jurisdiction of the court and substance of the allegations.

(To be continued)

Copyright Business Recorder, 2024