The Shadow of the International Criminal Court Hangs Over Israel’s Rulers

Updated. On Monday, May 20 the International Criminal Court (ICC) prosecutor issued requests for international arrest warrants against Israeli Prime Minister Benyamin Netanyahu and his defence minister, Yoav Gallant for their penal responsibility in committing war crimes and crimes against humanity.
The issuing of warrants for arrest by the ICC against the rulers of Israel would have significant consequences, both symbolic and practical. But the news from Israel relating to these warrants may show them to be quite compatible with a strategy aimed at re-mobilising the allies of a country which has lost, partially at least, the ‘battle for world opinion’, or perhaps a strategy aimed at intimidating the international criminal jurisdiction.

Khan Younès, 25 April 2024. A doctor stands by the bodies lined up for identification after they were dug up from a mass grave discovered in the Nasser medical complex.
AFP

When he was banned from entering France to take part in a colloquium organised by Senator Raymonde Poncet Monge (Les Écologistes), Doctor Ghassan Abu Sittah declared that the German authorities, at the origin of the ban1 were trying to prevent him from testifying before the ICC. Even as he was being detained at the Charles de Gaulle airport, we heard the news of the death, possibly under torture, of another Palestinian doctor, Adnan Albush, arrested in Gaza by Israeli armed forces and subsequently gaoled in Israel. Furthermore, after the withdrawal of Israeli forces from the Al-Shifa and Nasser Hospitals, several collective graves were discovered, seeming to attest to massive summary executions of patients and health workers by Israeli forces. This discovery aroused strong reactions and may have accelerated the investigations of the ICC. However, these summary executions are only one aspect of the war on medical care conducted by Israel in Gaza. And besides the warrants that may be issued against Benyamin Netanyahu, Defence Minister Yoav Gallant and Chief of Staff Herzi Halevi, the Court’s investigators appear to be examining the situation in all the Gaza hospitals.

The war on medical care and genocide

In her latest report, the UN special rapporteur, Francesca Albanese, recalls the fact that hospitals and other sites for medical care benefit from a special legal protection in situations of armed conflict. Attacking a hospital amounts to a war crime, and this is true no matter what the type f conflict. A fortiori, the ransacking and destruction of these essential infrastructure also all under a prohibition of this sort. The murder or ill-treatment of health workers or injured patients, be they civilians or military personnel, are also war crimes.

But attacks on hospitals or their occupants may also be defined as a crime against humanity. International jurisprudence offers a precedent in this respect: the Vukovar Hospital affair in which Serbian forces, following the siege of that city in November 1991, arrested nearly two hundred Croatian fighters inside the hospital, took them outside and executed them. The affair was tried by the International Criminal Court for ex-Yugoslavia in 2009, and the qualification of crime against humanity was debated since the execution of these fighters was part of a broader assault against the civilian population.2

In Gaza, the attack against hospitals may be regarded as systematic and should be related to the siege preventing the delivery of medicaments and essential equipment. It has often been reported for example that surgeons must practise amputations without anaesthetics, including on children.

Concerning Gaza, the qualification of genocide may also be seriously considered, especially regarding the systemic character of the attacks, their meaning, and the way they fit into a broader offensive conducted against the civilian population. For these many long months, the civilian casualties due to the bombings of residential areas went hand in hand with grievous bodily harm. The unprecedented decision to take hospitals for specific targets, beyond the fact that these constitute sites for organising Palestinian civilian life and for finding refuge since the beginning of the Israeli onslaught, this choice reflects an intention to disrupt medical care. Such a strategy, considering the gravity of the wounds inflicted, means condemning the wounded to death or to lifetime handicaps. It could therefore mean submitting part of the Palestinian people to ‘conditions of existence meant to lead to its total or partial physical destruction’ or to inflicting’ ‘serious harm on its physical or mental integrity’. (Article II of the Genocide Convention) with the intention of destroying it.

The impact of warrants for arrest against Israel’s rulers

So this war on medical care seems to be under investigation by the ICC. This could easily lead to the arrest of those Israeli rulers who ordered the attacks on hospitals, health workers, patients and families having found refuge on those premises. This is the most likely hypothesis considering the Israeli army’s degree of organisation, and the fact that it is under the control of the political power. The arrest of health workers, among them Doctor Adnan Albursh, their imprisonment in Israel is another obvious sign. We are not talking about undisciplined elements or battalions acting on their own which are carrying out this war on medical care; this is a deliberate policy. The criminal responsibility of the rulers could be at stake based on their commanding roles, which could be either military or civilian. The failure to prevent or punish of these crimes is sufficient in this case for them to be held responsible.

However, in view of the ICC’s reluctance since 2009 to investigate Israel’s behaviour, the announcement of these warrants against important Israeli leaders has been greeted with scepticism by observers.3 It was obviously orchestrated by Premier Netanyahu and was accompanied with Israeli threats against the ICC and the Palestinian authority. The USA followed suit. It began by declaring the tribunal incompetent, a juridically unconvincing argument, to say the least, considering that the US accepted that competence to attack Russia, a country which has never signed the Rome Statute creating the ICC any more than Israel has done.

Then some US politicians threatened to pass sanctions against the ICC. The previous ones, passed under trump’s presidency, were in reaction to the investigation of the US Army’s behaviour in Afghanistan but also to the Court’s attitude towards the situation in Palestine. These sanctions were lifted under the Biden presidency, while Washington began to contribute to the investigation against Russia, but without adhering to the Rome Statute.

On 3 May 2024, this intense agitation around the question of possible warrants prompted a statement from the office of the prosecutor, denouncing the threats and intimidation aimed at the Court and its personnel. Several special rapporteurs for the UN Council on Haman rights also voiced their ‘consternation’ over the declarations made by Israeli and US leaders.4 It remains, however, difficult to know whether we are dealing with a carefully constructed rumour or whether the court is investigating Israel’s rulers. The Court may, it is true, keep secret the warrants it issues; in 2023, it did, however, decide to make public those it had issued against high-ranking Russians, ‘in the interest of justice’ in order ‘to prevent further crimes.’ But in addition, the Rome Statute allows a country whose representatives are the object of an investigation to contact the prosecutor’s office. Indeed, the principal known as ‘complementarity’ is recognised by the Rome Statute as allowing any state, even if it is not a party to the statute to escape the jurisdiction of the Court if State intends itself to investigate and uncover identified crimes. If we consider the probable existence of these exchanges between Israel and the Court prosecutor, as well as the Court’s passive attitude towards Israel’s wrongdoings in the past, there is reason to think the issuance of warrants aimed at Israel’s rulers remains very dubious.

However, in the event the Court should issue these warrants, they would have an important symbolic impact juridically speaking. On the one hand, all the countries having signed the Rome Statute, among them many which are presently supporting Israel, would find themselves obliged to arrest the persons under warrant visiting their territory. As concerns the special case of the Israeli Prime Minister, who enjoys under international law a privilege of immunity which would make his arrest a complicated affair, so that the countries having signed the Statut might find themselves faced with conflicting obligations, between their obligation to arrest in keeping with the warrant and the rule of international immunity. But the risk of arrest would not go away. On the other hand, the identification of Israeli officials as suspected of international crimes would have a major political effect.

Israeli propaganda and Western censorship

But the rumour about these warrants might also become an element of Israeli propaganda targeting international jurisdictions.5 The important ruling by the International Court of Justice (ICJ) on 26 January 2024, demanding that Israel take precautionary measures in view of the risk of genocide in Gaza, was described as having been issued by an ‘anti-Semitic court’ by Israeli minister Itamar Ben Gvir.6 The ruling was immediately invisibilised by Israel’s spectacular accusations against the United Nations Relief and Works Agency for Palestine Refugees in the Middle East (UNWRA). However, once this news had been proven false – and the accusation turned against the accusers when UNWRA revealed that its personnel had been detained and tortured – the importance of the ICJ’s ruling regained its full force.

At this point a hitherto unknown element surfaced which was meant to be in Israel’s favour: an interview with the ICJ’s former presiding judge, Joan Donaghue, who claimed that the jurisdiction had not recognised, ‘a plausible case of genocide’. Let us remind readers that in its 26 January 2024 ruling, the Court stated that the Palestinians’ right to be protected against acts of genocide was plausible (§§ 56.64) and that there existed some urgency, in other words ‘a real and imminent risk’ of irreparable prejudice being caused to their asserted rights (§ 61, 74). So there really is a risk of genocide even if the Court does not use the expression ‘a plausible case of genocide’. The media seized on Joan Donahue’s ambiguous expression to minimise the meaning of the ruling and refute the use of the word genocide.

This incident recalls the public disavowal, in 2011, of the extensive report produced by the fact-minding mission on Gaza by its own chairman, legal expert Richard Goldsone.7 The public positions voiced by Joan Donaghue, like those of Richard Goldstone, suggest the existence of strong pressures exerted by Israel and its allies. More generally, forms of intimidation and censorship in connection with legal analyses may be perceived in many Western countries. Thus, in France, the word genocide has been called ‘a rallying cry to stigmatise Jews’8 and counts as an infraction of ‘incitement to hatred, violence or discrimination’. Analysing the notion of terrorism, of legitimate self-defence, presenting the international law of armed conflicts as it deals with movements of national liberation, questioning the status of Palestinian freedom fighters, for any of these you are likely to be hauled into court and charged with ‘glorifying terrorism’ if we are to believe a circular published by the French Ministry of Interior Affairs on 10 October 2023. The day before, the Minister of Higher Education, interpreting the events politically, referred to these offences when she invited university presidents to react severely to ‘any act or statement’ involving the ‘glorification of terrorism, incitement to hatred, violence or discrimination’ by means of disciplinary procedures or notifications to the public prosecutor.

An understanding of what is going on in Gaza did finally win out but was accompanied by the oppression of students protesting policies of their countries or their universities, in the United States as well as Europe. This is why the special rapporteur for the UN Human Rights Commission, Irene Kahn has recently opined that the situation in Gaza was giving rise to a global crisis of freedom of speech. Pointing to ‘a media bias against pro-Palestinian support’, she also reminded us that under international law ’criticising Israel is perfectly legitimate. [[On this point, see also the Human Rights Council’s resolution of 5 April 2024: “We must guard against confusing criticism of Israeli violations of international law and anti-Semitism” (point 24).]

1On 14 May, a German court overturned this ban.

2Hervé Ascensio and Rafaëlle Maison with Chloé Bertrand, ‘L’activité des juridictions pénales internationales (2008-2009)’, Annuaire français de droit international, 2009, p. 377-379.

3See for example Richard Falk,’s analysis: ’War on Gaza: The ICC must seize this moment to hold Israel accountable’, Middle East Eye, 6 May 2024.

4‘Israel/Gaza: threats against the ICC favour a culture of impunity, UN experts accuse’, UN info, 10 May 2024.

5Press release, 17 March 2023.

6Sam Sokol, ‘A “Dishonour” for the ICC: Israeli reactions to the verdict in The Hague’ The Times of Israel, 26 January 2024.

7On that episode, read Norman G. Finkelstein, Gaza, An inquest into its martyrdom, University of California Press, 2018, p. 117-132.

8A declaration made by the president of the CRIF on 6 May 2024.