The geopolitical impact of the ICC’s actions on Gaza

I want to pen some quick thoughts on this topic– not least because in the years 2001-06 I conducted some pretty serious research on the whole matter of “criminal liability/accountability” in individuals in cases of atrocious war crimes, crimes against humanity, and genocide… And in 2007 I published a whole book on the whole, then fairly recent, emergence of a set of “international courts” that sought to hold leaders and other high-ranking perpetrators criminally responsible for their acts, irrespective of whether they carried out those acts while in political/military office or not. (Most often, they had been in office.)

Two people whom I honored to call friends and colleagues have issued very powerful commentaries on yesterday’s announcement by ICC Chief Prosecutor Karim Khan that he is applying for arrest warrants regarding the situation in Gaza, for Israeli PM Netanyahu and Defense Minister Yoav Gallant, and for Hamas General Secretary Ismail Haniyeh and the Gaza-based military-political heads Yahya Sinwar and Mohammed Deif.

These two commentaries come from Jonathan Cook and from Noura Erakat.

Cook’s piece is headed thus:

Indeed, there is no comparison: Israel’s crimes are far worse than Hamas’s: Benjamin Netanyahu is right to dismiss as ‘absurd and false’ the suggestion that there is any equivalence in the atrocities committed by the two sides.

…And he then proceeds to give a dozen strong examples of ways in which the violations committed of the Israeli leaders far, far outstrip those of the Hamas leaders– and have done so for many decades prior to last October 7. His piece is well worth reading. It is a useful corrective to all those Zionist talking heads who somehow still claim that Hamas’s “atrocities” are far more serious than any, relatively minor “violations” that Israel’s leaders may (or may not) have committed.

For her part, Noura Erakat’s critique takes a much more “political” look at the ICC prosecutor’s latest– and in her view, extremely belated– action.

In her twitter thread, Erakat importantly, and in my view quite accurately, notes the following:

The ICC is incapable of delivering justice…

By its very structure, the ICC is a depoliticizing forum. Its emphasis on criminal culpability limits its reach to individuals at the expense of state crimes, ideologies, & political context.

The #RomeStatute does not include colonialism as a core crime & limits the temporal jurisdictional to the time of a state ratification of the treaty among other limitations that effectively reify European supremacy in the international system.By its very structure, the ICC is a depoliticizing forum. Its emphasis on criminal culpability limits its reach to individuals at the expense of state crimes, ideologies, & political context.

Nonetheless, she concludes thus:

The request for arrest warrants is… welcome for finally breaking the taboo on charging Israel and challenging the paradigm that has perversely collapsed Jewish safety with Israeli state crimes.

The charges against Hamas are not only expected but less consequential because it is effectively already punished through economic sanctions & diplomatic marginalization by several Western governments. The same cannot be said for Israel.

The efficacy of the #ICC request, like of the ICJ provisional measures, as well as other legal tactics relies on the political acumen of states, individuals, etc. A solid place to start is to exact assurances from states that they will arrest Netanyahu & Gallant on their soil.

Erakat is quite correct to delve into the (geo-)politics of the whole phenomenon of these (post-1990) international criminal courts. I think she is incorrect, however, to describe any of those post-1992 courts as “de-politicizing” forums. Remember that the ICC, which has a potentially global purview/jurisdiction, was established under an international treaty, the “Rome Treaty”, in 1998, and came into force in 2002. It was preceded by the International Criminal Tribunals for Former Yugoslavia and Rwanda, which had been established by the UN Security Council in, respectively 1993 and 1994. By their nature, all three of these courts have always been distinctly political forums– though it is true that the governments and activists that established the ICC worked hard to give it a thick veneer/appearance of being an “a-political”, purely judicial body.

In truth, though, no judicial body is ever a-political. Every judicial body– whether a domestic court or the ICTY, the ICTR, the ICC, or their antecedents back in Nuremberg or Tokyo– operates within, and is strictly constrained by and subservient to, a political order. The ICTY and ICTR were established by the Security Council in an era in which the United States was clearly and proudly emerging as the global hegemon. And the ICC was established in an era still dominated by Washington’s clearly unilateralist impulses– 2002, people, remember what Washington was up to in those days!– but one in which many European powers were timidly trying to distance themselves, a little, from Washington’s hegemonism.

Most of all, you could describe the ICC as a distinctly “West Europe-led” intervention into the realm of global governance– one in which several well-known European “donor states” were also able, using their generous pockets loaded with aid dollars/Euros, to entangle significant governments from the Global South.

It is always absolutely necessary to underline that the United States never entered the Rome Statute. (Noura Erakat should certainly have mentioned that fact!)

For any politician in the United States to utter even a word of commentary or criticism of the actions of the ICC Prosecutor or its judiciary is an absolute travesty.

When Pres. Joe Biden and U.S.legislators publicly slam the ICC Prosecutor’s decision to seek arrest warrants for Netanyahu and Gallant– or even urge that the U.S. should (once again) start to sanction the ICC itself because of this– the rest of the world should just tell them to SHUT THE F#$% UP. They and the United States as a whole have no standing whatsoever to express any opinion about the ICC.

However, the status of the ICC as– as I noted– a basically West-Europeanist project in the international arena is what gives Karim Khan’s latest action its particular geopolitical impact.

Of course, we don’t know yet– and we may not know for several months– whether the ICC bench to which Khan made his application for these five arrest warrants will grant all of them, some of them, or none.

Several commentators have noted that it is highly unusual, or perhaps even unprecedented, for the ICC prosecutor to publicly announce that he has made an application before the bench actually signs off on it. On several occasions, even after the bench has issued the final warrant, that fact has been kept under wraps for long enough to allow the– West Europe-led– coalition of governments whose police forces intervene to arrest those charged by the court, to make their plans to do so. But on this occasion, Prosecutor Khan hurried to announce his application, even as or before he submitted it to the bench. Of course, all such decisions are intensely political!

So now, the “ICC coalition” of (basically West European) governments have undeniably and apparently irreversibly set themselves up for an open confrontation with Israel– and also with Washington. To me, this is far from a-political. It is the essence of the geopolitics of what is happening… And extremely interesting, for that reason.

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As for my own view of whether ICC indictments have any role to play in improving the dire situation of the Palestinian people? At first blush, and based on all the research I did 20 years ago into the role that criminal prosecutions– or more precisely the decisions that two notable sub-Saharan governments made to forego them– I would say that individualized criminal prosecutions of atrocity-committing national leaders are absolutely not the way to usher in a sustainable, hopeful, rights-based termination for any longstanding inter-group conflict.

(Read my book– described in 2008 by Genocide Studies scholar Helen Fein as “an enduring contribution to the literature on coexistence and the punishment of genocide and crimes against humanity” (PDF)–to find out why I say this.)

By contrast, I think the actions that the International Court of Justice (ICJ) has taken and may yet take on the matter of Palestine could have a massive lasting impact.

But I confess that in the present circumstances, seeing the ICC’s apparatus, including its West Europe-led ruling coalition and its prosecutor, starting to take on Israel and Washington, and thus to drive a sharp shim through the heart of the “West” is a a pretty welcome sight, and one that augurs a deepening crisis for Western hegemony over global governance more broadly.