The ICC’s dangerous gamble - undermining democracies while aiding terrorists

The ICC’s actions risk emboldening terrorist organizations while undermining the Court’s own legitimacy.

By AMI H. ORKABY NOVEMBER 28, 2024 20:31

Ami H. Orkaby. (photo credit: Courtesy)

With global conflicts intensifying in Europe and the Middle East, the International Criminal Court’s (ICC) recent decision to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant raises critical concerns about the Court’s role in modern warfare.

This unprecedented move—the first time the ICC has targeted leaders of a democratic state—raises broader questions about the ability of democracies to defend themselves without fear of politically motivated prosecution.

Since Hamas launched its deadly terrorist assault on Israel on October 7, the Israel Defense Forces (IDF) have been engaged in a military campaign to dismantle Hamas’s terrorist infrastructure. Under international law, Israel’s response is justified as self-defense. While Israel is doing its utmost to avoid civilian casualties, Hamas is using the civilian population of Gaza as human shields—a grave violation of the laws of war.

This well-documented war crime only exacerbates the human toll. Because available figures come solely from Hamas-controlled sources, which fail to distinguish between combatants and civilians, it is nearly impossible to make accurate casualty assessments.

Despite this lack of reliable data and with hostilities ongoing, the ICC issued its warrants, also ignoring the principle of complementarity, which mandates that the ICC only intervene when national legal systems are unwilling or unable to prosecute war crimes.

INTERNATIONAL CRIMINAL COURT Prosecutor Karim Khan speaks in Caracas, Venezuela, earlier this year. This week, he faces charges over accusations he made against Prime Minister Netanyahu and Defense Minister Yoav Gallant, says the writer. (credit: Leonardo Fernandez Viloria/Reuters)

Israel’s legal system can fully investigate such matters, as even the ICC Prosecutor has acknowledged. In contrast, Hamas has shown no intention of holding its own operatives accountable for war crimes. War crimes against the civilian population are, in fact, a fundamental strategy employed by Hamas, as previously highlighted. 

Raising a troubling historical parallel

The ICC’s actions raise a troubling historical parallel: would wartime leaders like Winston Churchill have faced accusations of war crimes had the ICC existed during World War II? Churchill’s difficult decisions, such as the bombing of German cities, were deemed necessary to secure victory. Similarly, Israel’s leaders face hard choices as they work to protect their citizens from an enemy openly committed to their annihilation. By targeting Israel, the ICC undermines the ability of democracies to defend themselves, setting a dangerous precedent for other nations.

This dilemma is not unique to Israel. The United Kingdom, as an ICC member, is now expected to detain Netanyahu or Gallant should they visit British soil, despite Israel being a crucial ally in the fight against Islamist terrorism. Such a scenario puts the UK in an impossible diplomatic position, a challenge exacerbated by inconsistent responses from British political leaders. As a matter of fact, a Downing Street spokesperson confirmed Wednesday (27.11.2024) that UK courts would evaluate whether Prime Minister Benjamin Netanyahu qualifies for immunity from arrest under international law if he visits the UK.

Mongolia, also an ICC member recently faced a similar situation, when Russian President Vladimir Putin visited the country for an official state visit, despite an ICC arrest warrant against him. However, unlike Israel, Russia is not a member of the ICC, and the legality of the ICC’s warrant against Putin is highly controversial, reflecting ongoing conflicts and lacuna in international law. Mongolia’s decision to host Putin underscores the impracticality of enforcing ICC mandates in cases involving complex geopolitical realities and foreign policy issues of sovereign states.

These examples highlight the risk of politicizing international justice. The ICC was never intended to become a tool for political agendas. Democracies must be able to defend themselves without the constant threat of politically driven legal action.

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The ICC’s actions risk emboldening terrorist organizations while undermining the Court’s own legitimacy. True justice requires acknowledging the complexities of modern warfare and upholding the right of democracies to protect their citizens. By prioritizing politics over impartiality, the ICC endangers the principles it was established to defend, setting a dangerous precedent for future conflicts.