Analyis
The ICC’s arrest warrants for Netanyahu and Gallant will test the international system
UN Special Rapporteur Francesca Albanese: ‘The system is creaking. Either it will become strengthened, or everything that has been built over the past 76 years to protect human beings … will vanish for good.’
In the past eleven months, the highest courts on the planet have shaken the decades of international apathy over Israeli settlement colonialism and its practices. In January, the International Court of Justice (ICJ) upheld the charge of genocide brought against Israel by South Africa (of which two more would follow); in July, the same court called the military occupation of the Palestinian Territories illegal and designated it a de facto annexation and an apartheid regime. Finally, on Thursday, the International Criminal Court (ICC) issued arrest warrants for war crimes and crimes against humanity for Israeli Prime Minister Benyamin Netanyahu and former Defense Minister Yoav Gallant.
“The two courts represent the biggest political and legal test since the decolonization era. Who do we stand with? With universal justice, including for the nonwhite world, or with colonial crimes and genocide?” says Nicola Perugini, professor of international law in Edinburgh. “The two legal proceedings are a clear signal that, in a purely legal sense, humanity cannot tolerate the violence perpetrated by Israel over the past 14 months to eliminate the Palestinian population after putting responsibility on it as a national group for the events of Oct. 7.”
“That violence against the colonized group is aimed at replacing the Palestinian population with Israeli settlers,” Perugini explains. “Putting it all together, the two courts point out the breadth of the crimes aimed at enacting what Special Rapporteur Francesca Albanese calls 'colonial erasure' in her latest report, as the majority of Netanyahu's ministers have openly admitted.”
Albanese, the U.N. rapporteur who has been warning of the risk of genocide since October 2023, stresses that we must sound the alarm at the global level: “It is of fundamental importance to respect international law, which compels all states to execute the arrest warrants,” she explains to il manifesto. “The system is creaking. Either it will become strengthened, or everything that has been built over the past 76 years to protect human beings – and especially over the past 25 years under the authority of the Rome Statute: the ability to prevent and punish international crimes – will vanish for good.”
“For years, the state of Israel has made life a hell on earth for millions of Palestinians,” Albanese stresses. “The last 14 months are simply an exterminating escalation that I have called genocide.”
For the past two days, legal experts from around the world have been stressing that governments need to comply with the decisions of the Court, which has no coercive powers of its own: the signatory states to the Rome Statute are under the obligation to act, arresting any individual subject to an arrest warrant and sending them to The Hague. There is only one exception to this obligation: if there is already an open criminal case in that country against the same individual for the same crimes, national jurisdiction prevails.
What happens if states refuse to comply? There are no direct repercussions, but there are some indirect ones that can be very unpleasant. Nimer Sultany, a Palestinian jurist and professor of law at Soas University in London, tells il manifesto: “Some states have universal jurisdiction: they authorize citizens and organizations to sue in the national courts in case their country fails to arrest a person wanted by the ICC.”
The Criminal Court itself has some tools available, although they only affect the reputation of non-compliant countries. This was the case with Mongolia, which did not cooperate by refusing to arrest Vladimir Putin: on October 24, the Pre-Trial Chamber of the ICC referred Mongolia to the Assembly of Member Countries, which has the power to censure Ulan Bator.
In the background lies the specter of collective damage: “If, after supporting Putin's arrest, Western countries do not do the same with Israel, the whole international legal order will be weakened: no state will have incentives to comply,” Sultany points out. “It will be interesting to see what Germany will do: today's international law was largely established as a result of German crimes committed in World War II.”
“Today, states have many obligations: first of all, to prevent genocide, as stipulated by the ICJ; second, to not contribute to the illegal occupation of the Occupied Palestinian Territories – another ruling by the ICJ; and third, the arrest warrants,” Sultany concludes. ”The importance of the three decisions lies in making clear the criminality of Israel’s rule over the Palestinians. The West can no longer sell the image of Israel as a peaceful and vibrant democracy.”
Originally published at https://ilmanifesto.it/dalla-corte-penale-un-test-politico-legale-storico-rispettate-laja-o-crolla-tutto on 2024-11-23