The ICC’s credibility is hanging by a thread

Upon the entry into force of the Rome Statute of the International Criminal Court in 2002, a palpable hope arose that the era of impunity for war crimes, crimes against humanity and genocide was coming to a close.

Twenty-two years later, the international legitimacy of the court hangs in the balance as it ignores calls to move swiftly against those responsible for mass atrocities in Gaza. In May, ICC Prosecutor Karim Khan requested the court to issue warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and his Defence Minister Yoav Gallant, along with three Hamas leaders. The ICC is yet to make a decision despite the mounting death toll in and destruction of Gaza amid Israel’s continuing genocidal violence.

The idea of a permanent international tribunal to prosecute war crimes first emerged in the wake of World War I in the legal circles of the victorious powers, but never materialised. After World War II, which killed an estimated 75-80 million people, several concepts of “justice” were floated.

At the 1943 Tehran Conference, during which the heads of state of the USSR, the United States and Great Britain met to discuss war strategy, Soviet Union leader Joseph Stalin suggested that at least 50,000 of the German commanding staff must be eliminated. US President Franklin D Roosevelt replied, reportedly jokingly, that 49,000 should be executed. UK Prime Minister Winston Churchill argued for trying war criminals for their individual responsibilities.

Eventually, the allies established the Nuremberg and Tokyo military tribunals, which indicted 24 German and 28 Japanese military and civilian leaders, respectively. But this was, in essence, victors’ justice as none of the Allied powers’ leaders or military commanders were prosecuted for their war crimes. In the end, these tribunals were, arguably, a symbolic attempt at trying those who waged wars of aggression and committed genocide.

During the following decades, no such international effort was made to bring war criminals to justice. Thus, for example, the mass murderers of peoples who rose against colonial and imperial powers never faced trial.

The notion of international justice was revived in the 1990s when the United Nations Security Council established two ad hoc tribunals to prosecute crimes committed during the 1991-1995 and 1998-1999 wars in the former Yugoslavia and the 1994 Rwanda genocide. While these tribunals served their purposes, some questioned their efficacy, financial costs, and independence, given that they were set up by a Security Council dominated by Western powers.

Here again, the notion of victors’ justice hovered particularly over the Yugoslavia tribunal, as it didn’t investigate, let alone prosecute, NATO officials for the seemingly illegal 1999 bombing campaign against the Federal Republic of Yugoslavia.

With respect to the Rwanda tribunal, the latter didn’t investigate the possible complicity of Western powers in the genocide and/or their failure to prevent or stop it in accordance with the 1948 Convention on the Prevention and Punishment of Genocide.

In this context, the signing of the Rome Statute in 1998, which entered into force in 2002, gave rise to hopes that those who commit war crimes, crimes against humanity and genocide will be prosecuted by the new court regardless of which side they were on in a conflict.

In 2018, the crime of aggression – defined as the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a violation of the Charter of the United Nations – was added to the court’s jurisdiction.

But it didn’t take long for the high hopes for the ICC to be frustrated. A few signatories of the Rome Statute formally declared they no longer intended to become State Parties, thus nullifying their obligations. Among them were Israel, the United States and the Russian Federation. Other major powers, like China and India, did not even sign the statute.

It also did not help the ICC’s credibility that all 46 suspects it sought to prosecute in the first 20 years of its existence were Africans, including sitting heads of state.

This pattern was broken for the first time in June 2022, when the court indicted three pro-Russian officials from the breakaway region of South Ossetia who were accused of committing war crimes during the Russia-Georgia war of 2008. A year later, in March 2023, the court made the sensational move to issue an arrest warrant for Russian President Vladimir Putin, just 29 days after Chief Prosecutor Khan asked for it.

The decision was, on merit, rather puzzling. Despite the lethality of the war raging in Ukraine since February 2022 and reported attacks on civilian targets, the warrant was issued for Putin’s alleged “individual criminal responsibility” for the “unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation”.

In and of itself, the warrant against a sitting president of a permanent member of the UN Security Council could have signalled the independence of the ICC and its volition to go where the evidence would take it. But given the overt psychological war between the West and Russia, some saw the court’s decision as further evidence of the influence of its Western backers.

This perception could have been mitigated had the court demonstrated it was bona fide by following the overwhelming evidence of war crimes and crimes against humanity committed by Israel against the Palestinians.

In 2018, the State of Palestine submitted a referral to the ICC “to investigate, in accordance with the temporal jurisdiction of the court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine”. It took the court five years to determine in March 2023 that it could initiate an “investigation into the Situation in the State of Palestine”.

In November 2023, South Africa and five other signatories made another referral to the ICC, after which Chief Prosecutor Khan confirmed that the investigation launched in 2023 “remains ongoing and extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023”.

It took Khan no less than seven months to recommend to the court’s pre-trial chamber the issuance of warrants of arrest for Netanyahu and Gallant, notwithstanding a rather formidable amount of evidence of their personal responsibility in the war crimes perpetrated in Gaza. He also made the same recommendation with respect to three Hamas leaders, two of whom were subsequently assassinated by Israel.

Arguably, it took time and courage to seek the arrest of Netanyahu, who has the support of the US and of Mossad, Israel’s infamous intelligence agency specialising in assassinations abroad. In May, the British newspaper The Guardian revealed that Khan’s predecessor, Fatou Bensouda, had been threatened “in a series of secret meetings” by Yossi Cohen, the then-head of Mossad and “Netanyahu’s closest allies at the time”.

Cohen tried to compel Bensouda “into abandoning a war crimes investigation” and “is alleged to have told her: ‘You should help us and let us take care of you. You don’t want to be getting into things that could compromise your security or that of your family.’”

If Bensouda was threatened and blackmailed for merely investigating allegations of war crimes perpetrated before the current genocidal war, one can only fathom the pressures and threats, real or assumed, that Khan faced or feared.

Now that he has done his duty, it is for the three sitting judges of the pre-trial chamber to decide whether to issue the warrants or not. Whether they face the same threats as Bensouda is unknown, but they must be acutely aware that the very credibility of the ICC also hangs in the balance if warrants of arrest for Netanyahu and Gallant are not issued without further delay. The glaring and extraordinary amount of evidence of war crimes, crimes against humanity, genocide, and crime of aggression is such that were they to abscond from their responsibility, they would ring the death knell of the ICC.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.