The establishment of the International Criminal Court in 2002 was welcomed as one of the most important developments in international co-operation since the end of World War II.
As a senior UN official during this period, I was a co-author of a key report complementing the ICC and played a broader role in advocating its establishment. I was drafted in to help sell the ICC to the Japanese Parliament as one of my last acts before leaving the UN.
But, like former Australian Foreign Minister Alexander Downer, I have come to question my involvement and advocacy, particularly in light of ICC prosecutor Karim Khan’s outrageous decision to issue arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, plus three Hamas leaders. This is a grotesque inversion of international criminal justice. The UN charter was never meant to be a tyrant’s charter of impunity or a constitutional instrument for self-protection, but I never expected the ICC would be weaponised against democracies defending themselves against terrorists.
There is no moral equivalence between the head of an elected government and the commander of a terrorist organisation who planned and ordered the October 7th massacre, which Hamas has boasted it will repeat so Israel will “taste new ways of death”.
There is no parallel between terrorists who target civilians to kill, maim, rape and abduct and a professional and disciplined military. It is clear Israel and Hamas cannot coexist peacefully. There was a ceasefire in place before Hamas attacked. Another ceasefire that leaves Hamas in power in Gaza with the capacity to regenerate terrorist battalions would deliver a great victory to the terrorists of October 7th. Hamas could end the civilian carnage immediately by releasing all remaining hostages, giving up arms and surrendering.
The allegation that Israel is deliberately starving civilians as a method of warfare is baseless. Israel has overseen the delivery of half a million tonnes of relief supplies to civilians in nearly 30,000 aid trucks. In contrast, Hamas steals and profiteers much of the aid.
The ICC is mandated to step in only when national authorities fail to hold alleged perpetrators of war crimes to account. Israel is exceptionally punctilious, more than Australians and the U.S., in investigating allegations of wrongful killing and prosecuting its soldiers if evidence points to their culpability.
The ICC came into effect in July 2002 and has 124 state parties. Several countries, including China, Egypt, India, Indonesia, Iran, Pakistan, Russia, Turkey and the U.S., have not joined, meaning only about one-third of the world’s population comes under its jurisdiction. It is based at The Hague and has more than 900 staff members from 100 countries; its 2024 budget is €187m (£159m). In 22 years the court has issued 46 arrest warrants and recorded 10 convictions and four acquittals. Is this value for money? The court has been criticised for focusing on crimes committed by smaller countries and turning a blind eye to misdeeds of powerful countries. The ICC issued an unenforceable arrest warrant for Russian President Vladimir Putin last year. But the ICC has not even bothered to investigate possible crimes by China against Uighurs.
The ICC isn’t embedded into a broader system of democratic policymaking and there’s no political check on it. Why should it have any authority over constitutionally legitimated democracies? If not over them, can it fairly claim jurisdiction over non-democracies such as China and Russia? The most sustained criticism of the ICC came from African nations that faulted it for unfair targeting and jeopardising delicate peace negotiations in Kenya, Uganda, Sudan and Libya.
The ICC issued arrest warrants for Sudan’s President Omar Hassan al-Bashir in 2009. The African Union warned this could jeopardise peace talks. Kenya refused to hand over suspects to the ICC as required by the court’s rules. Instead the African Union adopted a resolution calling for a mass withdrawal from the ICC. In a sign of the widening rebellion, Bashir was welcomed to the India-Africa summit in New Delhi in 2015 and held bilateral talks with Indian Prime Minister Narendra Modi. India’s position was that Security Council Resolution 1593, urging states to co operate with the ICC, wasn’t binding on non-parties. South African Deputy Minister Obed Bapela said the ICC had “lost its direction”.
Echoing the two-decade-old African complaint, British Prime Minister Rishi Sunak says the ICC’s action is “not helpful in relation to reaching a pause in the fighting, getting hostages out or getting humanitarian aid in”. The three-judge panel that will consider Khan’s request should decline to follow the prosecutor’s lead. If they agree to the request, all countries will be under an obligation to arrest Netanyahu should he set foot in their territory.
If this transpires, I will regret my part in the ICC’s development. Criminal law cannot replace a country’s public or foreign policy. As control of global governance institutions passes into the hands of countries with incompatible values, does the West risk being trapped in a prison of its own making, or will this attempted overreach sound the ICC’s death knell?
Ramesh Thakur, a former UN Assistant Secretary-General, is Emeritus Professor at the Australian National University, Senior Research Fellow at the Toda Peace Institute, and Fellow of the Australian Institute of International Affairs. His new book, Our Enemy, the Government: How Covid Enabled the Expansion and Abuse of State Power (Brownstone Institute, 2023), is out now. This article was first published by the Australian.
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