Blackmailing international criminal justice
By Professor Alfred de Zayas, Geneva School of Diplomacy
The Prosecutor and the judges of the International Criminal Court are bound to observe the Statute of Rome and apply it uniformly, without preferences or double-standards. Otherwise, they will forfeit their authority and credibility They must resist blackmail by any country that pretends to instrumentalize the Court for geopolitical games. Capitulating to threats of illegal sanctions by the United States would subvert the international rule of law which our civilization has been building over centuries. Pushback is necessary not only by the Court itself, but by the 124 States parties to the ICC Statute1, by inter-governmental organizations and by civil society. Students in universities worldwide are already demonstrating and demanding accountability and an immediate ceasefire in Gaza.
Karim Khan’s request to the Court to indict Israeli and Hamas leaders implements the object and purpose of the ICC2. It is supported by the unanimous report of a panel of experts that advised the Prosecutor.3 In the light of the ongoing genocide in Gaza and the egregious crimes that have been committed by both sides, it is necessary and logical to start judicial investigations. Indeed, the ICC’s sister tribunal, the International Court of Justice, also based in The Hague, is already seized of the international legal questions raised in the cases South Africa v. Israel and Nicaragua v. Germany.
The ICC has been operating since July 2002, but its 22-year history is marred by a troubled beginning and many States members have begun to question its legitimacy, since hitherto it has only conducted trials against Africans and spared Western leaders from criticism. Indeed, many observers think that the ICC has become a tool of Western neo-colonial politics. This is evidenced by its failure to indict Western political and military leaders, notwithstanding well-documented legal briefs submitted to three Prosecutors, particularly concerning war crimes and crimes against humanity in Afghanistan and Iraq, including torture in Abu Ghraib, Mosul, and Guantanamo.
The ICC lost much credibility when it surrendered to massive United States pressure and illegal sanctions imposed in 2020 by President Donald Trump on the then Prosecutor Fatou Bensouda and her staff4, when she attempted to investigate reports of war crimes by US, Australian, German forces in Afghanistan. This perception of bias was confirmed when the new ICC Prosecutor Karim Khan decided in 2022 to discontinue the investigations of US crimes while continuing the investigation of crimes by the Taliban. This blatantly political decision was condemned by human rights groups worldwide, including Amnesty International and Human Rights Watch.
Whereas in 2021 Biden lifted the sanctions imposed by Trump on the ICC, voices in the US Senate have again been raised with regard to the necessity to “punish” the ICC for its audacity to seek indictments against Israeli leaders. The firebrand US Senator Lindsay Graham proposed to work with Secretary of State Anthony Blinken in adopting bipartisan sanctions on the ICC “not only for the outrage against Israel, but to protect our own interest”. Blinken answered “I welcome working with you on that.” Soon after Human Rights Watch sent a letter to President Biden asking him to oppose any legislative effort to undermine the ICC: “The previous administration’s sanctions against
ICC officials… aligned the United States with authoritarian tactics of threatening judges and independent judicial institutions.”5
The new US threats to impose sanctions on the ICC constitute a frontal attack on the very essence of international law and international order. They upend the independence of the international judiciary and the object and purpose of the ICC, which is to investigate all reports of violations of the Rome Statute, in particular the crime of aggression (Art. 5), genocide (Art. 6), crimes against humanity (Art. 7) and war crimes (Art. 8). Alas, this kind of US “hard ball diplomacy” is déjà vu, as the US has a long record of pressuring the ICTY, ICTR and even the International Court of Justice itself.
Now the Court stands at a crossroads. It has an opportunity to vindicate the hopes of humanity for justice and accountability, or it can surrender to the animus dominandi of the United States and the European neo-colonial powers.
If the ICC judges fail to indict Israeli Prime Minister Netanyahu and his Minister of Defense Yoav Gallant, as recommended by Prosecutor Khan, it risks a massive departure of members of the Statute of Rome, because it will become all-too-evident that the ICC has abandoned its mandate and failed to even try to stop the genocide in Gaza by judicial means. The ICC would have failed not only the Palestinains, but also humanity at large. The African Union has already discussed the withdrawal en masse from the Statute because a perceived lack of objectivity by prosecutors and judges. Failure to indict Netanyahu would be the last nail in the coffin.
As an international lawyer, I am optimistic that the ICC will issue the arrest warrants. Impunity is no longer acceptable in the 21st century. Nor can there be impunity for complicity in genocide, for aiding and abetting through military, political, diplomatic, economic and propagandistic support of the perpetrators. On 22 May the Geneva International Peace Research Institute (GIPRI)6 submitted a case to the Prosecutor against Ursula von der Leyen for complicity in the Gaza genocide7. The ball is on