Should Israeli Prime Minister Benjamin Netanyahu and his Minister of Defence Yoav Gallant be prosecuted for crimes against humanity? The chief prosecutor of the International Criminal Court (ICC) in The Hague thinks so.

In May, he presented a draft arrest warrant for both politicians to the trial chamber of the ICC, seeking their arrest together with the political and military leaders of the terror organisation Hamas, Yahaya Sinwar, Ismail Haniyeh and Mohammed Deif.

He grounded his appeal for the arrest of the Hamas leaders on “extermination of civilians, murder, hostage taking, rape and torture”. PM Netanyahu and his minister of defence were accused of “using starvation as a weapon and withholding humanitarian aid” from Gazans.

The ICC prosecutor’s pre-trial procedure caused outrage, consternation and controversy on a global scale. Politicians and media felt compelled to take sides in a case that would have been merely a question of legal procedure under less tense circumstances. There’s no arrest warrant. There’s no court case to answer for. Both are months and years in the future.

Netanyahu called the prosecutor, a portly Scottish lawyer, King’s Councillor and expert in International Law, “one of the greatest antisemites in modern times”, comparing him quite naturally with Nazi judges. US President Joe Biden called the proceedings “outrageous” and added that “there’s no equivalence between Hamas and Israel”, a fact ICC prosecutor Karim Khan had clearly implied.

The US Republican Party was quick to demand an “Illegitimate Court Counteraction Act” to impose a travel ban and the freezing of all bank accounts for all ICC employees and their families (!), a legislation many moderate Democrats promised to immediately consider.

It echoed the sanctions imposed by Trump against two ICC prosecutors who tried to prosecute personnel of the US Army responsible for illegal acts of war in Afghanistan. (A similar case against UK soldiers in Iraq was dismissed as the UK could plausibly demonstrate that it held its soldiers legally responsible.)

The ICC, founded in 2002, has only limited reach. It can merely claim jurisdiction in countries that have signed up to its founding document, the “Rome Statute”. Many countries never participated, like Israel, Turkey, China, or Saudi Arabia. Quite a few withdrew their support, like the Russian Federation and the US.

Yet Palestine, recognised as a sovereign country by only 140 nations so far, is a signatory and as such can plausibly establish competence for the ICC in the Gaza Strip and West Bank.

The US and Israel, which refute Palestinian statehood, deny the ICC jurisdiction.

Should Netanyahu ever be handed an arrest warrant, he can safely stay out of the ICC’s reach, as can the head of Hamas, residing in Qatar. Note: ICC prosecutions have a purely subsidiary character. If a country can plausibly claim to prosecute perpetrators in a fair and transparent procedure, the ICC has to close the case. Instead of accusing the ICC to be the equivalent of a Nazi court, Israel could choose to stop ICC procedures by opening legal proceedings against Netanyahu herself.

Explainer: the ICC tries to prosecute individuals for crimes against humanity. In difference to the UN International Court of Justice, which prosecutes sovereigns. The latter has no power to execute its decisions.

This has grave consequences for our country, our legal system and social peace- Andreas Weitzer

It is currently examining South Africa’s claim of “genocide” against Israel. It has instructed Israel to stop its campaign in Rafah, without much success. Its findings have only reputational significance.

Karim Khan, in his attempt to save what it left of the international order in the 21st century (the ICC itself has repeatedly been accused of a “colonial”, anti-Africa bias and the tendency to prosecute predominantly small, weak states while ignoring crimes committed by richer and more powerful states), opined that “no foot soldier, no commander, no civilian leader – no one – can act with impunity… the law cannot be applied selectively. If that happens, we will be creating conditions for its collapse.”

Ever fewer opinion leaders and politicians seem to agree with him. The Swiss broadsheet Neue Zürcher Zeitung (NZZ), usually one of the most considerate papers in Europe, accused Khan of “arrogance” and the ICC to “ignore political reality”.

Piquantly, the NZZ argued that because “ever more countries abandon principles of democracy, the rule of law and principles of international behaviour” the ICC should be more careful where it treads, act tactically and leave Israel alone. The NZZ, in other words, demands that a court of the stature of the ICC should act with political caution.

This is the exact opposite of the rule of law, which demands freedom from political interference. There won’t be much censoring in the case of the atrocities committed by Hamas. But Khan also wants to examine if two Israeli politicians have personally authorised starvation as an opportune weapon in war. He has interviewed witnesses, sieved through thousands of pages of documentation and consulted an international panel of judges to peer-review his findings (Lord Justice Fulford, Judge Theodor Meron CMG, Amal Clooney, Danny Friedman KC, Baroness Helena Kennedy LT KC, Elisabeth Wilmshurst CMG KC).

On top of legally relevant material stands defence minister Gallant’s public declaration: “I have ordered the complete siege on the Gaza Strip. There will be no electricity, no food, no fuel.” It is a statement hard to ignore.

In Malta we face a similar predicament. The saga of our hospital ‘deal’, the story of the nobodies Vitals Global Healthcare and Steward Health Care as a tale of theft and bribery on an unprecedented scale, is often described as a “political vendetta”.

Former Prime Minister Joseph Muscat has claimed that “the institutions are working… against  Labourites”. The attempt to smear investigators and judges as political stooges, in the US and Malta, risks undermining the rule of law. This has grave consequences for our country, for our legal system and social peace. Rating agencies have taken note already.

In the case of the US versus the ICC, much more is at stake. It raises the question whether the US, long considered a linchpin of the international order, will only defend the law where it pleases.

Vladimir Putin has been issued an arrest warrant by the ICC for condoning the abduction of Ukrainian children in his war of conquest against Ukraine. Like Netanyahu, he will remain out of reach as long as he stays in Russia and visits only countries outside the reach of the ICC, like China, North Vietnam and Saudi Arabia. The US applauded the verdict at the time with gusto.

Bullying the ICC now in a case in which the US has differing foreign and domestic political interests will do incommensurate damage to the rule of law, to world peace and the Untied States’ ability to rally support for its causes in future. It will confirm the cynical view of many that the US is the ruthless, hypocrite power Putin accuses it to be.

To wield sanctions as the cudgel of convenience will come back to haunt us too. Whatever investments we may own are at risk once property is fair game.

Andreas Weitzer is an independent journalist based in Malta.


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