On November 21, the prosecutor of the ICC announced that a three-judge panel has finally made a decision on his May 2024 application for an arrest warrant for Israeli Prime Minister Netanyahu.
The celebration of the arrest warrant against Netanyahu is premature
Many are celebrating the arrest warrant against Netanyahu and Gallant. But, while there is no doubt that they deserve to be held to account by the Palestinians and the world for the crimes they have and continue to commit in Palestine, Lebanon, Syria and Iran, they are not charged with the crime of genocide, even though they are charged with inflicting mass starvation on the people of Gaza, nor the supreme war crimes of aggression for their continued illegal occupation of Palestinian lands and the brutal suppression of the Palestinian resistance to that occupation. Nor are they charged for their aggression against the sovereign nations of Lebanon, Syria and Iran, which crimes they openly brag about and which are recognised by the entire world, but not, it seems, by the prosecutor or judges of the ICC.
Further, as people calm down in their cheering, they must realise that the ICC has also issued arrest warrants for a leader of Hamas, Mohammed Diab Ibrahim Al-Masri whose alleged war crimes are nothing more than echoes of Israeli propaganda about the Palestinian armed resistance to the brutal occupation of Palestinian lands and the brutal oppression by the occupation forces of the Palestinian people.
Where is the charge of Genocide?
Netanyahu and Gallant are charged with war crimes and crimes against humanity for mass starvation and targeting the civilian population with aerial attacks, and mass attacks by Israeli armoured and other forces.
The ICC press release states,
“Each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution, and other inhumane acts.”
“The Chamber also found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.”
But these charges also amount to acts of genocide, so why are they not charged with genocide? And why has no indictment been issued? Only the prosecutor and the judges can explain, and they do not.
But aside from pointing out the obvious compromise made by the ICC, to placate its critics about its inaction over Israeli crimes by laying charges yet not laying the most serious charge, the one that should be laid, we have this phrase underlined above which needs to be considered, the phrase, “jointly with others.”
Israel’s Partners in Crime Untouched
Who are the “others”? The ICC coyly refuses to say, hoping no one will ask the question. But the answer is clear: the USA, the EU, UK, France, Canada and the rest, who all give military aid and support to Israeli to carry out these crimes and have made themselves co-belligerents in this murderous war against the peoples of the Middle East, and are its partners in crime. The leaders of those nations must also be charged and warrants issued for their arrest. They are equally culpable under international law. But they are not charged. So that, in his defence, Netanyahu, if he is ever brought before this tribunal, can argue the defence of selective prosecution, that is, he can ask, “why am I charged but not the co-conspirators, the co-actors who supported and encouraged my crimes. It is not just to charge me if they are not going to be charged.”
He would be right to use that defence, and perhaps the prosecutor has arranged it so that Netanyahu and Gallant now have that defence available to them.
Political Purpose of the Warrants
But we know that Netanyahu will never be arrested and face a trial at this so-called world court. The Americans immediately came to his defence and denounced the action of the ICC. They have to because if Netanyahu is ever before the judges of the ICC, they fear the facts about their role in the crimes against the Palestinians and the others will be revealed in all their detail and depravity. The British, the French, and the Canadians will have their dirty crimes exposed as well. None of the allies of Israel want Netanyahu arrested and tried. So he will not be. The ICC knows this.
So why was the warrant finally issued after so long a delay, after so much political interference was exerted by Britain, the US, the French and others to prevent the ICC from issuing charges?
We can only speculate, as we are not privy to the phone calls between Mr. Khan and the various governments involved in these crimes, and how it was all arranged, but it was a political decision of a political prosecutor of a political tribunal.
One reason can be to improve the image of the ICC, to make it look like it is doing something, while, in effect, nothing is done to change the situation for the Palestinians, the Lebanese, the Iranians, and the Syrians. It will placate some who support the Palestinians, who think the ICC is a real court, and perhaps it is hoped that this will reduce the street protests across Europe and elsewhere. No need now the ICC will say, we have acted, and you can go home now.
The ICC attempts to justify its charges against Russia
But there is another reason, and that is to trick people into thinking the ICC is some real arbiter of international justice and therefore the arrest warrants the ICC issued against President Putin and others are valid and should be acted upon.
The ICC has issued warrants of arrest of a series of Russian officials over the past few months; we suppose to keep the pot boiling, each as absurd as the one before it.
On 17 March 2023, the ICC issued warrants for Vladimir Putin, President of the Russian Federation, and Ms Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. Based on the Prosecution’s applications of 22 February 2023, Pre-Trial Chamber II considered that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.
The absurdity of these charges and warrants, based solely on Kiev propaganda about Russia’s attempts to save the lives of children, is manifest. It is also clear that they did not charge President Putin with aggression because there has been none, and so they decided to use the most emotive charge possible to inflame public opinion against Russia. In other words, the ICC became an active tool of NATO in its war against Russia.
On 5 March 2024, the ICC issued warrants of arrest for Sergei Ivanovich Kobylash, a Lieutenant General in the Russian Armed Forces who at the relevant time was the Commander of the Long-Range Aviation of the Aerospace Force, and Viktor Nikolayevich Sokolov, an Admiral in the Russian Navy, who at the relevant time was the Commander of the Black Sea Fleet for the war crime of directing attacks at civilian objects, the war crime of causing excessive incidental harm to civilians or damage to civilian objects, and the crime against humanity of inhumane acts. None of these allegations are based on any facts or any investigation and meant to be propaganda.
On 24 June 2024, the ICC issued warrants of arrest Sergei Shoigu and Valery Gerasimov, in the context of the situation in Ukraine for alleged international crimes committed from at least 10 October 2022 until at least 9 March 2023 for the same reasons, war propaganda, to justify the continuance of the war against Russia.
Ukraine leadership given immunity from prosecution for its crimes
The ICC has not charged anyone in the illegitimate government of Ukraine for any of its crimes against the civilian population of Ukraine in the Donbass oblasts from 2014 to today, nor for its gratuitous attacks on the civilian population of Russia. It has been given immunity from prosecution.
The only legitimate prosecutors are the Palestinians, Lebanese, Iranians and Syrians for Israeli crimes committed against them.
So, to all those celebrating and cheering the warrants issued against Netanyahu and Gallant should think carefully about what they are doing. Yes, those two are war criminals. Yes, they should be held accountable, but to the Palestinians and the Lebanese, the Syrians and Iranians. They are the ones who should be issuing warrants for their arrest, who should make them stand trial before the tribunals of those nations, as well as the leaders of the USA and the other nations who are parties to the Israeli crimes not this political farce called the ICC which is not a world court, which is not an independent judicial body capable of rendering justice, but a political tool of the West, used by the West for its own political and strategic reasons and objectives. The world is tired of the games of the ICC. The people of the world want real justice.
Christopher Black is an international criminal lawyer based in Toronto. He is known for a number of high-profile war crimes cases and recently published his novel Beneath the Clouds. He writes essays on international law, politics and world events.
