ICC Application for Warrant Against Netanyahu Signals Justice May Still Prevail

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International Criminal Court

As International Criminal Court prosecutor Karim Khan appeared on global screens on Monday, announcing that he was applying for arrest warrants against Israeli PM Benjamin Netanyahu and defence minister Yoav Gallant, a sense that justice still prevailed, at least somewhere, was conveyed.

Flanked by two key ICC members, lawyers Brenda Hollis and Andrew Cayley, Khan projected his authority and his ability to wield it, and as top Israeli officials were the focus of two warrants, this act was beyond the hasbara, or Israeli propaganda, that’s prevailed globally over the last eight months.

Netanyahu and Gallant stand accused of war crimes and crimes against humanity: specifically, starvation, wilful killing or murder, directing attacks against civilians, extermination or murder, persecution and other inhumane acts.

These have allegedly been committed against the 2.3 million Palestinians of Gaza.

The ICC prosecutor is also applying for warrants against Hamas head Yahya Sinwar, military commander Mohammed Diab Ibrahim al-Masri and political bureau head Ismail Haniyeh, with another litany of war crimes and crimes against humanity against their names.

But the main focus of the global press has been on the Israeli warrants, and with good reason, as condemning Hamas for the October 7 attacks has been a global effort ever since, yet in terms of Israel killing thousands of civilians, as well as starving them, there’s been an effort to justify this.

Arrest warrants aren’t antisemitic

“On the basis of evidence… I have reasonable grounds to believe that Benjamin Netanyahu… and Yoav Gallant… bear criminal responsibility for… war crimes and crimes against humanity committed on the territory of the state of Palestine… from at least 8 October 2023,” Khan told the globe.

“My office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas… running in parallel,” the British lawyer added on Monday.

The applications for the warrants were submitted to the ICC pretrial chamber, which consists of three magistrates: Romania’s Iulia Motoc, Mexican judge Maria del Socorro Flores Liera and Reine Alapini-Gansou from Benin. And their decisions are expected to come within several months.

The ICC can’t enforce warrants. Police from any of the 124 ICC member states can. This includes Palestine and Australia, but not Israel and the US. And it means that if a warrant against Netanyahu is issued and he travels to a state, he should be arrested, or that state receives a mild UN sanction.

Netanyahu responded by referring to the warrant as if it applied to the entire nation of Israel. And he called the act of applying for the warrant against him antisemitic, or motivated by prejudice against Jews, which is a tactic his settler colonial nation has long used to deflect criticism of it.

Um… arrest warrants aren’t antisemitic

The Australian government has dutifully stood beside the Biden administration over the last eight months, as it’s repeatedly asserted that Israel has the right to defend itself, even though that nation’s military has been perpetrating the gravest atrocity of the post-World War II era.

As for the news of the warrants against the leader of a nation he’s been closely aligned with over recent months, prime minister Anthony Albanese told the press, that he doesn’t “comment on court processes in Australia, let alone court processes globally, that which Australia is not a party”.

And when the media in Sydney’s Westmead pressed him on Tuesday as to whether he agreed with US president Joe Biden’s rejection of the potential warrants, the PM responded, “I don’t comment on court proceedings”, and then went on to discuss the Julian Assange matter straight after.

Foreign minister Penny Wong, who cut off funding to UNWRA, the main aid channel into Gaza, on the day following the International Court of Justice deeming it a site of “plausible genocide”, said of the warrants, that “Australia respects the ICC” and the “role it has in upholding international law”.

Yet, opposition leader Peter Dutton relied on the conflation of antigenocide sentiment and criticism of Israel as being antisemitic, which saw the potential next leader of this nation not only treating the consistency as stupid but further propagating disinformation that will, ultimately, cause it harm.

The crimes of leaders

Established via the Rome Statute on 1 July 2002, the International Criminal Court is an independent body. And it prosecutes the four core international crimes: genocide, war crimes, crimes against humanity and the crimes of aggression, in all their various forms.

The institution differs from the other major global court, the International Court of Justice (ICJ), as that body is a part of the United Nations establishment. And the ICJ deals with charges against nations, while the ICC deals with the criminal activities of individual leaders.

And it’s significant the ICC has moved to issue warrants against Israel, a Global North nation, as, at the onset of the catastrophe in Gaza, criticisms were raised against this institution, with the claim being it only goes after Global South culprits or the opponents of the US and NATO.

As ICC states are required to, Australia inserted three of the four core crimes into its federal law. And these offences, relating to war crimes, crimes against humanity and genocide, came into effect locally in late 2002. Yet, the 2010 ICC legislated crimes of aggression are yet to be ratified here.

Contained in division 268 of the Criminal Code Act 1995 (Cth), the three core atrocity offences have universal jurisdiction and can be applied to anyone for an act committed anywhere in the world. However, our nation’s attorney general must sanction such a prosecution to go ahead.

Great hope and grave fear

The decision of Khan to take this action signals to the entire planet that Israel and the actions of its highest leaders have taken against the Palestinians of Gaza are criminal and not anything like the actions of a nation defending itself.

Indeed, Israel is the occupier, and the Palestinians are the occupied.

Khan’s determination brings similar hope as did the ICJ genocide claim against Israel brought by South Africa. And that case, along with the application for the warrants, serve to counter the campaign the western political class and mainstream media have waged to justify the slaughter.

But these applications to the highest courts on the planet also bring concern. And that is that the flagrantly illegal actions of Israel and the financial backing and diplomatic support coming from western nations, are serving to undermine the international system of justice.

And just as is already happening with the orders of the ICJ, which Israel has simply ignored, if these systems do not serve to punish or prevent the crimes that they have identified, they will be rendered useless, and there will be no international justice that nations suffering atrocities should expect.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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