Two and a half years after the invasion of Ukraine, the International Criminal Court it managed to produce only an arrest warrant for Vladimir Putin and only for the accusation of having deported children from Ukrainian territory with the aim of taking them away from their families and re-educating them according to Russian culture. Nothing for the Bucha massacre, for the mass graves of Izium where 447 corpses were found, nothing for the missiles on civilians, on hospitals, on power plants. Now Attorney General Karim Ahmad Khanafter six months of war between Israel and Hamas and without having carried out any investigation worthy of the name, asks at the same time the arrest of Netanyahu, Defense Minister Gallant and Hamas leaders Sinwar, Al Masri and Haniyeh. Putting the State of Israel and the terrorist militia that proudly and sadistically claimed responsibility for the brutal attack of October 7th on the same level.
It is the first time this has happened for the incumbent head of government of a democratic country, and it is a move in total contrast with the Rome Statute which governs the Court established in 2002 in The Hague. Not only because Israel (like the United States, Russia, China) has never joined the Court. But because its – only – task is to judge war criminals when their judicial systems are unwilling or unable to do so. And while there is no judge in Gaza who would dream of investigating the bosses of the permanent war, Benjamin Netanyahu has been under investigation since 2016 and on trial since 2019. The Israeli justice system, and with it a large portion of the population, openly defied him when he tried to pass radical justice reform. If he is guilty of war crimes or crimes against humanity (at least prosecutor Khan spared him genocide), he could undoubtedly be put under investigation by the magistrates of his country.
Yet the prosecutor does not appear to be seeking justice, having (he or his other colleagues) not set foot in Gaza. A group of officials from The Hague were due to land in Israel two days ago to discuss facts and evidence, but Khan had already decided that the war in the Middle East should be his “lasting legacy” (the “Financial Times” writes), and he preferred to make his announcement quickly. The first charge is that of having “starved civilians as an instrument of war”, with 31 inhabitants of the Strip reportedly dying of malnutrition and dehydration.
According to Israeli data, 542,570 tons of aid and 28,255 trucks of food have entered Gaza since the start of the conflict. Therefore, even if these deaths were caused by the terrible condition in which Gaza finds itself today, it cannot be said that they are the result of a deliberate and unequivocal plan. While Hamas over the last 20 years has taken the billions of euros in humanitarian aid received from Europe and the United States and transformed them into Kalashnikovs, rockets, tunnels under hospitals used as ammunition depots and prisons for Israeli civilian prisoners. Hamas has transformed Gaza into a military fortress and an eternal factory of desperation and existential frustration for the Palestinian population, for six months Israel has been reacting (albeit in a very violent way) to the most brutal attack ever suffered against its very existence.
In the coming weeks, three judges will have to decide whether the arrest requests are legitimate. But the decision will have no concrete effect: former Sudanese president Omar Bashir has had a mandate on his head since 2009 for extermination in Darfur and has never been captured.
What will change will be the United States’ attitude towards the International Criminal Court: Washington signed but never ratified the Charter, and during Trump’s presidency there was further hardening (there was talk of prosecuting American soldiers for their actions in Afghanistan). Instead, in recent months both the Biden Administration and some members of Congress were working to give new political life to the Court, and encourage investigations into crimes committed in Ukraine. The prosecutor’s move, defined as “outrageous” by the American president, will have the sole result of making international criminal law even more sectarian and ineffective. (by Giorgio Rutelli)
