Will the handcuffs around Netanyahu’s wrists soon click? If the chief prosecutor of the International Court of Justice has his way, then yes. However, in The Hague they usually only work in the subjunctive.
From Karim Khan’s point of view, they are both serious criminals, Israeli Prime Minister Benjamin Netanyahu and Hamas leader Jihia al-Sinwar. The chief prosecutor of the International Criminal Court (ICC) is certain that the democratically elected head of government starved and killed Palestinian civilians and that the terrorist leader was responsible, among other things, for the murder, rape and hostage-taking of Israelis. Khan also wants to put Israeli Defense Minister Joav Galant as well as Hamas deputy Mohammed Deif and its foreign chief Ismail Hanija on trial.
The Scottish lawyer and his team had been investigating in The Hague for months, and now they apparently have enough for a handful of arrest warrants. Theoretically. Because in practice the criminal court is more appearance than reality. Until now, the rule for accused rulers was: If you don’t want to go to prison, you just have to stay at home.
Four reasons why what appears to be the most powerful criminal court in the world is actually a toothless tiger.
Reason 1: The states that matter are not participating
124 states are committed to the Rome Statute, the basis of the International Criminal Court in The Hague, Netherlands. That sounds like a lot at first, but it only corresponds to around a third of the world’s population. In any case, it is less important who is there than who is not.
In particular, states that are often involved in conflicts themselves avoid The Hague. The USA, China, India, Russia and Israel, among others, do not recognize the ICC. These are not just any shirkers, but the states that make the difference. They are among the potentially most important accusers or defendants. For the nuclear powers, it’s ultimately a cost-benefit calculation: Why should they sign a treaty in Beijing, Moscow or Washington if they were threatened with investigation the moment they signed? When in doubt, it is easier to dismiss it than to deny it.
This reveals one of the ICC’s greatest weaknesses: The Hague can only investigate citizens of a member country or if the alleged crime was committed on the territory of a member country.
Reason 2: Even some members don’t take The Hague seriously
Now there is little point in complaining about unwilling world powers as long as even the ICC members are only half-hearted about it. Finally, a membership can be canceled (unilaterally) at any time. In fact, Russia had signed the Rome Statute, but withdrew its signature in 2016 after the Court classified the annexation of Crimea as an occupation.
But even those states that are (still) sticking to their promises sometimes interpret their obligations flexibly. When the arrest warrant against Putin was issued in March 2023, ICC President Piotr Hofmanski emphasized that its execution depended on “international cooperation.” A sore point. The case of Sudanese President Umar al-Bashir, against whom an arrest warrant was issued for the first time in 2009, showed how embarrassing this can be. Since then, 19 countries have ignored the order from the Netherlands, nine of which have signed the Rome Statute.
Who will ultimately be brought before the judges always depends on the enthusiasm of the member states. In the end, they are the executive branch. The Hague itself lacks the resources and authority to bring the suspects into the dock themselves. ICC judges have so far issued 42 arrest warrants – almost half of the suspected criminals are still at large.
Reason 3: A single confusion of responsibilities
In law, the small print always matters. Because no matter how much evidence investigators collect, the ICC can only prosecute individuals, never entire states. In order to accuse people, he must be able to accuse them of specific crimes. The chain of command must be fully documented: from the soldier who pulls the trigger, to the captain who gives the order, to the general who moves the troops, to the commander in chief who declares war. If that sounds like a lot of work, that’s because it is a lot of work.
Another problem: In contrast to crimes against humanity, the court can only prosecute a head of state for an invasion order itself if his country also recognizes the ICC. In addition, the state (or at least its victim) must have allowed The Hague in advance to take action in the event of a war of aggression. An attack on another country, a so-called “crime of aggression,” was only added to the Rome Statute in 2018 – and not even half of the contracting parties have agreed to the change since then. In a word: complicated.
For this reason, for example, Kremlin leader Vladimir Putin is not wanted to be tried in The Hague for the attack on Ukraine, but for the deportation of thousands of Ukrainian children from occupied territories to Russia. This is considered a war crime, not a crime of aggression, so the legal hurdles are lower.
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Reason 4: More African tribunal than world court
There is criticism not only for how the apparatus works, but also for what it does. In a sense, the ICC also functions as a substitute court. In states where there is no reliable justice system, crimes against humanity should not go unpunished. That’s the noble theory.
However, some criminals are easier to judge. A well-known example is the case of the Ugandan Dominic Ongwen. He was kidnapped as a small boy by a local rebel group and forcibly recruited as a child soldier. In the years that followed, he murdered, tortured and raped and rose to the position of commander in the terrorist organization. In the Hague court, he did not deny any of the egregious crimes. But he is not guilty – after all, he was forced to kill from an early age. In 2021, the ICC sentenced him to 25 years in prison.
The Ongwen case raised a legitimate question: Isn’t it presumptuous to believe that a single “world court” can judge people whose lives and actions it can possibly only begin to empathize with? Some critics consider the fact that a Western-style judicial system decides African destinies to be colonialist. The Hague repeatedly investigated non-Africans. The court has heard 31 criminal cases so far – each of the 51 defendants and ten convicted was an African.
If the judges of the pre-trial chamber approve the requested arrest warrants against Netanyahu and al-Sinwar, they will make history. No Western head of government has ever been summoned to the dock by The Hague. Israel’s head of government would be a wanted man who would be awaiting handcuffs in 124 countries – including Germany. Until then, the matter is more annoying than threatening for Netanyahu. It should stay that way.
Sources: International Criminal Court; BBC; “Council on Foreign Relations“; “Access Accountability“; “The Conversation“; “profile“; “Amnesty International“; DPA
Note: This article first appeared in July 2023 and has been updated accordingly.