The ICC Roars, but Can It Bite?

Israeli Prime Minister Benjamin Netanyahu

Last week, the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, his former defence minister Yoav Gallant and Hamas leader, Ibrahim Al-Masri. At first glance, the charges - alleged war crimes and crimes against humanity during the Gaza conflict - might appear as a bold attempt to enforce justice. But scratch beneath the surface, and the ICC’s action highlights its glaring limitations, internal contradictions and the enduring scepticism surrounding its authority.

For a court designed as the world’s last resort for prosecuting the gravest atrocities, the ICC remains remarkably ineffectual. It has no police force, relying on its 124 member states to arrest suspects - a tall order when those accused are heads of state or key players in geopolitically sensitive conflicts. Netanyahu, whose government has consistently rejected the court’s jurisdiction, labelled the ICC a “biased and discriminatory political body.” The Hamas leadership dismissed the charges as well.

The ICC’s predicament is emblematic of a broader historical pattern: international institutions that promise justice and order but lack the teeth to enforce it. The League of Nations, the ICC’s conceptual ancestor, was established to prevent conflicts like the First World War from recurring. Yet its impotence became evident when Japan invaded Manchuria in 1931 and Germany annexed Austria in 1938. Lacking enforcement mechanisms and the support of key powers like the United States, the League’s lofty ideals crumbled under the weight of realpolitik, paving the way for the Second World War. The ICC, while more modern in structure, risks a similar fate of marginalization in a world where power often trumps principle.

Its current challenges are reminiscent of other fraught attempts at international justice. The ad hoc tribunals established for the Balkan Wars of the 1990s offer a cautionary tale. The International Criminal Tribunal for the former Yugoslavia (ICTY) eventually secured convictions for war crimes, including those against Serbian leaders like Slobodan Milošević. But the process was painfully slow, fraught with political interference, and dependent on Western military and diplomatic backing. Even then, many accused evaded justice for years, and the tribunal’s legacy remains contested in the Balkans.

More troubling is the ICC’s prosecutor, Karim Khan, whose own credibility is under scrutiny. Khan, who sought the arrest warrants, faces allegations of sexual misconduct that external investigators are currently examining. His ethical cloud undermines the ICC’s moral high ground, raising questions about whether the court can hold others accountable while its chief prosecutor battles serious allegations.

The United States, Israel’s staunch ally, swiftly condemned the ICC’s decision. President Joe Biden deemed the move “outrageous,” while a White House spokesperson criticized “troubling process errors” in the court’s handling of the case. Republican Senator Lindsey Graham, said to be close to President-elect Donald Trump, dismissed the ICC as a “dangerous joke,” calling for sanctions against what he termed “irresponsible” actions by the tribunal.

The ICC’s global standing further complicates matters. Major powers, including the United States, Russia, China, and India are not signatories to the Rome Statute, effectively shielding themselves and their allies from ICC jurisdiction. This leaves the court reliant on smaller states for legitimacy, often focusing its prosecutorial energies on Africa and less geopolitically contentious regions. The decision to issue warrants against both Israeli and Hamas leaders might appear even-handed, but it cannot obscure the fact that geopolitical reality often trumps justice.

Israel’s rejection of the ICC’s jurisdiction stems from a technicality. While the ICC claims territorial jurisdiction over Palestine, Israel does not recognize Palestine as a state, creating a legal grey area. Yet Pre-Trial Chamber I dismissed Israel’s challenge, asserting its authority to investigate alleged crimes committed on Palestinian territory. This legal back-and-forth has done little to resolve the fundamental issue: without Israel’s cooperation or that of its allies, the ICC’s warrants are toothless.

Recall that in 2009 and 2010, the ICC issued arrest warrants against Sudanese President Omar al-Bashir for genocide, war crimes, and crimes against humanity in Darfur. Despite these warrants, al-Bashir travelled freely to several ICC member states, including South Africa and Chad, without facing arrest. It finally took a domestic uprising in Sudan to oust him in 2019, highlighting the ICC’s inability to enforce its mandates. In 2005, the ICC issued arrest warrants for Joseph Kony, leader of the Lord’s Resistance Army in Uganda, and several of his commanders for war crimes and crimes against humanity. However, nearly two decades later, Kony remains at large, evading capture despite international awareness of his atrocities – an instance which glaringly underscores the ICC’s enforcement limitations.

Symbolically, the ICC’s warrants draw attention to the devastating human toll of the Gaza conflict. Yet symbolism without enforcement risks irrelevance.

The ICC’s creation in 2002 was heralded as a milestone for global justice. Yet two decades later, it remains a beleaguered institution, hamstrung by political realities and internal failings. The decision to issue warrants against both Israeli and Hamas leaders might appear even-handed, but it cannot obscure the fact that geopolitical reality often trumps justice.