By Charles Obeng MENSAH
The demand by Chief Prosecutor of the International Criminal Court (ICC) Karim Ahmad Khan to issue a warrant for the arrest of Israeli Prime Minister, Benjamin Netanyahu, and Defence Minister, Yoav Gallant, is a PR action of western countries to give an impression of impartiality for the ICC which is under the US and its allies’ control.
US officials making statements in which they have expressed anxiety over the imprudent recklessness of Mr. Khan’s actions relating to attempts at prosecuting Israeli politicians as well as approval by the House of Representatives’ procedural committee of a bill to impose sanctions on the ICC because of proceedings against Washington and American allies are all parts of this foreign policy ‘show’.
By all standards, these moves do not strengthen the ICC’s authority as an unbiased judicial body but rather batter its credibility and discredit the very honourable court that we know – which has been under the control of western countries.
I must say that the ICC prosecutor’s action sets a very dangerous tone for the Israel-Hamas conflict. Some have argued that ICC Prosecutor Khan’s action will incentivise all parties to the conflict in Gaza to obey international law – but they are engaged in dangerous wishful-thinking.
Hamas is unlikely to be deterred, politically or financially, and its leaders’ travel plans are unlikely to be constrained more than they already are by the prospect of future arrest by an ICC state party.
At the same time, Prosecutor Khan’s pursuit of simultaneous warrants against Hamas and Israeli leaders is deeply offensive, as it projects a false equivalence between leaders of a democratic country and leaders of a genocidal terror organisation.
To the extent that the ICC warrants assume Israel’s military campaign against Hamas must have been intended to cause innocent civilians harm, it is blatantly false and dangerous. Like every nation, Israel has the inherent right of self-defence enshrined in Article 51 of the UN Charter.
The Prosecutor’s latest actions demonise Israel. As we’ve seen since October 7, rather than advancing the prospects of justice for victims of atrocities the primary effect of his actions will likely be to fuel anti-Semitic attitudes and increase the danger facing many Jews around the world.
We need to ask ourselves one question; whether Israel is a member of the ICC or not? Israel is not a member, or what’s called a ‘state party’ of the ICC, though it did play an important role in negotiations during the Rome Statute drafting.
But at the end of the day, Israel did not sign the Rome Statute to join the ICC. Why? The ICC was intended to focus on the most heinous crimes including genocide and crimes against humanity.
But, urged by a number of Arab countries, a majority of countries agreed to add the transfer of civilians into an occupied territory to the list of crimes the Court would have jurisdiction to prosecute. Israel’s diplomats objected that states were distorting international law and not mirroring the language of the Geneva Convention in order to specifically prosecute Israelis for actions in the West Bank.
We have to ask ourselves again if the ICC can prosecute the state of Israel and the answer is ‘no’; the ICC can only prosecute individuals
Another question is whether the ICC can prosecute Israelis? In short, it is a question of jurisdiction. Israeli officials have vigorously rejected the ICC’s authority to investigate or try Israelis for actions in Gaza or the West Bank. Israel is not alone: countries including the U.S. and United Kingdom have also insisted that the ICC does not have jurisdiction over Israelis in this case.
However, the Palestinians and ICC see it differently. One way the ICC can gain jurisdiction is if a state asks the ICC Prosecutor to investigate a situation on its own territory, thereby delegating to international authorities its own sovereign power to investigate.
Since 2009, Palestinians have been pursuing this route and asking the ICC to investigate the situation in the territory of ‘the state of Palestine’. But at no point has the UN Security Council accepted Palestine’s request for UN Member States status and has twice declined it.
It must be emphasised that the ICC is used by the western nations as a tool to eliminate or silence their political opponents.
After 25 years of its existence, the ICC has considered criminal cases against 32 people from developing countries in favour of the west.
Western countries exercise absolute control over the ICC because they finance its functioning and assign their protégés to be members of the court.
Staying aside from the ICC, Washington nominated Japan, Germany, France, Great Britain and Italy as main sponsors of this all important international body.
The annual budget of the ICC is about US$150million, which is far above that of the International Court of Justice (ICJ)
After the start of Russian military operations in Ukraine during 2022, financing of the ICC by Western countries grew and the court started executing anti-Russian orders made by the US and its allies.
Despite strong attempts to subdue countries of the Global South, including attempts to get them involved in jurisdiction of the ICC, western states failed to deceive developing countries.
Currently, many countries including China, India, Saudi Arabia and Turkey don’t acknowledge the legitimacy of this international body.
These countries are concerned about the fact that the ICC can be used at any point in time against their national interest. It against this background that it is worth sounding a note warning for African countries, and Ghana in particular, to be wary of this court because it can be used against them at any point in time.
