UN rapporteurs support ICC against threats

Tuesday 14 May 2024

Pressure on the International Criminal Court appears to be stymying efforts to prosecute top Israeli officials for war crimes in Gaza

UN rapporteurs support ICC against threats


More than 40 UN rapporteurs and independent experts stepped in this week to denounce US and Israeli threats against the International Criminal Court (ICC).

A statement on 13 May signed by 45 UN special rapporteurs voiced “utter dismay” over statements made by US and Israeli officials threatening to retaliate against the ICC and its officials and members of their families should it issue arrest warrants against Israeli officials for war crimes in Gaza.

“It is shocking to see countries that consider themselves champions of the rule of law trying to intimidate an independent and impartial international tribunal to thwart accountability,” the experts said.

On 4 May, the Office of ICC Prosecutor (OTP) Karim Khan said that the court and its personnel had been threatened with retaliation if they take action against Israeli officials.

Khan’s statement confirmed earlier reports in the Israeli media that Israeli Prime Minister Benjamin Netanyahu had reason to fear the issue of warrants against him by the ICC, along with other Israeli officials.

It was the first time that news from The Hague-based institution suggested that the court, which has been criticised for procrastination regarding the seven-month war in Gaza, could take action in this direction.

On 24 April, 12 Republican Senators in the US addressed a letter to ICC Prosecutor Karim Khan threatening him and the court with “severe sanctions” should they consider issuing international arrest warrants against Netanyahu and other Israeli officials.

Such warrants would align the ICC with “the largest state sponsor of terrorism” and “expose” its “hypocrisy and double standards,” the letter said.

“If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States,” the Senators wrote in their letter.

“Target Israel, and we will target you,” they threatened, vowing to move to end all US support for the ICC, “sanction your employees and associates, and bar you and your families from the United States. You have been warned.”

The letter, signed by Republican Party Senators notorious for their support for Israel as well as for receiving election funds from pro-Israel donors, also evoked the American Service-Members’ Protection Act that gives the US president the power to release any US or allied personnel detained at the request of the ICC by “all means necessary”.

The law, known as The Hague Invasion Act, was passed by the US Senate in 2002 under the George W Bush administration. It has been described by international rights groups as part of concerted US efforts to undermine the ICC and its mission and international law.

Neither the US nor Israel are parties to the Rome Statute of the ICC or recognise its jurisdiction over the Occupied Palestinian Territories. The ICC can prosecute individuals for alleged war crimes, crimes against humanity, and genocide.

While the ICC Prosecutor’s statement reminded all individuals that threats of retaliation may amount to an offence against the administration of justice under Article 70 of the Rome Statute, none of its 123 state parties have reacted in defence of the ICC against Israeli and US threats.

This is not the first time that the US has exercised pressure and intimidation against the ICC.

In 2020 the US government imposed sanctions on ICC Prosecutor Fatou Bensouda and another senior prosecution official, Phakiso Mochochoko. Then US secretary of state Michael Pompeo said that the US had restricted the issuance of visas for certain unnamed individuals “involved in the ICC’s efforts to investigate US personnel”.

The sanctions on Bensouda and Mochochoko implemented a sweeping executive order issued on 11 June 2020 by US president Donald Trump. This declared a national emergency and authorised asset freezes and family entry bans against ICC officials identified as being involved in certain activities.

Earlier, the Trump administration had repeatedly threatened to thwart ICC investigations in Afghanistan and Palestine. In a previous step, in 2019 the Trump administration revoked the prosecutor’s US visa.

The ICC has been investigating war crimes in Gaza for months. Last month, insiders told Reuters that prosecutors had interviewed staff in two major hospitals in Gaza where several mass graves had been uncovered after the withdrawal of Israeli Occupation Forces (IOF).

Meanwhile, there are at least two cases being reviewed by the International Court of Justice (ICJ) against Israel for alleged violations of the Geneva Convention. The Hague-based court has jurisdiction over states, and both Israel and the US are state parties.

On Tuesday, the ICJ said it would hold hearings on 16 and 17 May in the case brought to the court against Israel by South Africa in December. It said the latest round of hearings related to South Africa’s request of 10 May for additional provisional measures and the modification of measures previously prescribed by the court in the case that South Africa filed against Israel for alleged violations of the Genocide Convention.

On Monday, Egypt said it would join South Africa in its case against Israel. Analysts have described the move as unprecedented given Cairo’s history with Tel Aviv.

Egypt, the first Arab country to recognise Israel in 1979, is leading mediation efforts, along with Qatar, between Hamas and Israel to end the war on Gaza. Its Rafah Crossing is the only border with Gaza that is not fully controlled by Israel because it is shared with Egypt.

Egypt’s move at the ICJ follows last week’s escalation by Israel on the Palestinian side of the Rafah Crossing, where Israeli tanks seized control of the crossing, raised Israeli flags, and blocked aid into Gaza.

* A version of this article appears in print in the 16 May, 2024 edition of Al-Ahram Weekly

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