(ZENIT News – TerraSantaNet / Jerusalem, 08.12.2024).- Two separate International Courts – it’s worthwhile underscoring it because there is confusion even in many of the media, are concerned with what happened and is happening in the Gaza Strip and its surroundings since October 7, 2023.
The International Court of Justice
The first of the two, by order of creation, is the International Court of Justice, with headquarters in The Hague (Low Countries), and is part of the United Nations system, of which almost all the States of the world are members, and is concerned with arbitrage and disputes between States that wish to resolve their disagreements based on law instead of force. It doesn’t have the power to judge individuals or sanction personal conduct of criminal relevance, not even that of rulers. This judicial organ was created in 1946, as an evolution of previous international judicial and arbitrage powers that go back to the 19th century. In December of 2023, South Africa opened a case against Israel before the International Court of Justice, accusing the Jewish State of violating — in the Gaza Strip –, the Convention for the Sanction and Prevention of the Crime of Genocide, which it signed in 1949. The procedural process is still underway and it is expected to be long, but in the meantime, through three different rulings, the Court has ordered Israel to adopt urgent measures to avoid genocidal effects.
The International Criminal Court
The second body in question is the International Criminal Court, which is not part of the United Nations system, although it has special relations with it. The Court also has its headquarters in The Hague and this is the reason for the frequent confusion. It was created by an International Treaty – the Rome Statute – signed by numerous States in the Italian capital in 1998. The Court judges individuals (including rulers and military chiefs) who have criminal responsibilities in the following “very grave” categories “of international relevance”: genocide, crimes against humanity, war crimes, crimes of aggression. The Rome Statute details the different sanctionable conducts for each of these four categories.
The Court does not proceed if the individuals accused of these crimes are already accused of these same crimes before competent national Courts.
Many large and small States, such as the United States, China, Russia, India, Pakistan, Indonesia, Iran, the Philippines, Israel, etc.) have not adhered to the Rome Statute; hence, they do not recognize the Court’s jurisdiction. Often, these States commit important and persistent violations of human rights in their territory, or have troops abroad involved in acts of war, which by their nature can border on criminal behaviour.
In theory, the 124 signatory States of the Rome Statute must implement the laws of the International Criminal Court in their territory. Yet realism shows, however, that by violating the solemn commitments assumed when a Treaty was signed, generally political-diplomatic considerations prevail, or there is insufficiency of the available means. We cite the most recent case: pending is an arrest warrant in The Hague against Russian President Vladimir Putin and yet, last September 2, he was received with honours in the capital of Mongolia, a country that adheres to the Rome Statute and which, therefore, should have proceeded to arrest hm or, at least, considered him an embarrassing or inopportune guest.
The Palestinian Initiative
In 2015 the State of Palestine was also recognized as a member of the Rome Statute, which in 2018 asked the Prosecutor – agent that represents an accusation before the International Criminal Court – to consider the crimes allegedly committed in the last years in the Palestinian Territories. In 2021, the prosecution accepted the Palestinian request and stated its competence to investigate.
Last summer, referring especially to what happened in Gaza last year, the Prosecutor asked the Court to issue international arrest warrants against several personalities considered actionable: Palestinians Ismail Haniyeh, Yahya Sinwar and Mohammed Diab Ibrahim Al-Masri (alias Deif) at Hamas’ summit, and Israelis Benjamin Netanyahu and Yoav Gallant, Prime Minister and Minister of Defense, respectively, at the moment of the crimes in dispute (Gallant was toppled from Netanyahu’s sixth government last November 5).
A Section (or Room) of this Court announced on November 21, 2024, that it had accepted the Prosecutor’s request and issued arrest warrants against three personalities that were still alive. In reality, it’s possible that Deif had already been killed by Israeli troops; however, given the lack of certainty about his death, the Court decided to proceed against him also.
Crimes Attributed to Deif
In the two press releases published to motivate the arrest warrants, the Court enumerates the accusations and points out a series of concrete episodes.
In essence, in regard to Mohammed Diab Ibrahim Al-Masri (Deif) it states:
“The Chamber has found reasonable motives to believe that Deif, born in 1965, the supreme commander of Hamas’ military wing (known as the al-Qassam Brigades) at the time of the alleged conduct, is responsible for the crimes against humanity of murder, extermination, torture, rape and other forms of sexual violence, as well as the war crimes of murder, cruel treatment, torture, taking of hostages, outrage to personal dignity, rape and other forms of sexual violence.”
“The Chamber – it continues – has found reasonable grounds to believe that Deif is fully responsible for the crimes mentioned above for (i) having committed the acts jointly and through others and (ii) having ordered or induced the commission of crimes, and (iii) for not exercising adequate and effective control over the forces under his command (. . . ) Moreover, the Chamber concluded that there are reasonable motives to believe that the crimes against humanity are part of a generalized and systematic attack directed by Hamas and other armed groups against Israel’s civilian population.”
Crimes Attributed to Netanyahu and Gallant
As regards the Israeli leaders Benjamin Netanyahu and Yoav Gallant, the Court’s press release is extensive. In sum, the principal allegations are:
“The Chamber considered that there are reasonable motives to believe that both individuals have deprived intentionally and consciously the civilian population of Gaza of essential goods for its survival, including food, water, medicines and medical supplies, as well as fuel and electricity, since at least October 8, 2023 until May 20, 2024. This conclusion is based on Netanyahu’s and Gallant’s role when impeding humanitarian assistance in violation of International Humanitarian Law and of not facilitating rescue with all means in their reach. The Chamber determined that their conduct caused the interruption of the capacity of the humanitarian organizations to provide food and other essential goods to Gaza’s needy population. The restrictions mentioned previously, together with the electricity cuts and the reduction of fuel supply, have also had a serious impact on the availability of water in Gaza and the capacity of hospitals to offer medical care. The Chamber also pointed out that the decisions to permit or increase humanitarian assistance to Gaza were often conditional. They were not taken to fulfil Israel’s obligations in virtue of International Humanitarian Law or to guarantee that Gaza’s civilian population receive an adequate supply of necessary goods. In reality, they were a response to pressures of the International Community or requests of the United States of America. In any case, the increases in humanitarian assistance were not sufficient to improve the population’s access to essential goods.”
“Moreover — the motivation continues –, the Chamber found reasonable motives to believe that a clear military necessity could not be identified or other foreseen justifications by International Humanitarian Law for the restrictions imposed on access to humanitarian aid operations. Despite the warnings and appeals of, among others, the UN Security Council, the UN Secretary General, States, NGO’s and civil society about the humanitarian situation in Gaza, only minimal humanitarian assistance has been authorized. In this regard, the Chamber considered the prolonged period of privation and Mr. Netanyahu’s statement that links the suspension of essential goods and humanitarian aid to war objectives. Hence, the Chamber has found reasonable motives to believe that Mr. Netanyahu and Mr. Gallant are criminally responsible for using hunger as a weapon of war.”
Certain military behaviour on the ground, given the consequences on the civilian populations, can be configured not only as war crimes but also as crimes against humanity. Among them are the killing of civilians, including children, who died from malnutrition and dehydration; inhuman acts, leaving hospitals and health personnel in the Gaza Strip without medications and the necessary means to operate and amputate patients’ limbs without anaesthesia; persecution, and depriving the people of Gaza of their fundamental rights on the basis of political and/or national considerations.
Up to now, the charges presented by the Prosecutor to motivate and obtain arrest warrants, for any future trial in the International Criminal Court, if it is ever carried out, is, for the moment, yet to arrive.
