Fragile justice

Last May, two important international courts adopted decisions related to the terrible Middle Eastern war between Israel and Hamas. The two Courts are different bodies and have very different competences, but they express important demands for justice in the international community. They are often confused, also because both are based in The Hague, a city that has long been home to the most important bodies of international justice.

On 20 May 2024, the Prosecutor of the International Criminal Court, Karim Khan, filed a request to issue arrest warrants for certain individuals: Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant (for intentional attacks against civilians and civilian objects, as well as personnel, vehicles and facilities of personnel engaged in humanitarian assistance, for starving the population and other war crimes and crimes against humanity), and three senior Hamas officials, Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh, on charges of war crimes and crimes against humanity (for the violence committed during the attack of 7 October and the subsequent taking of civilian hostages, torture and violence, including sexual violence against prisoners during their stay in the hands of Islamist militants in the Strip, and other war crimes and crimes against humanity).

A Pre-Trial Chamber of the Court is now called upon to decide on the Prosecutor's requests. It could reject them, accept them all, or accept only some of them. In the case of total or partial acceptance, the Court would issue arrest warrants against the accused.

The International Criminal Court, established by the Rome Statute of 17 July 1998, does not judge the behavior of States, but rather that of individuals accused of having committed crimes under international law (genocide, crimes against humanity, war crimes, and the crime of aggression), for which they are criminally responsible "under international law".

The International Court of Justice, the UN judicial body that is called upon to resolve disputes between States, on 24 May adopted a new decision in the case initiated by South Africa against the State of Israel. Already on March 28, the Court had (by unanimous decision) ordered the State of Israel to comply with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide and, in particular, to ensure essential services and humanitarian assistance – food, water, electricity, fuel, shelter, clothing, hygiene and health, as well as medical supplies and care to the Palestinians in Gaza. Furthermore, the Court ordered not to carry out acts that constitute a violation of the rights of the Palestinians in Gaza as a “protected group” under the same Convention.

The Court then ordered Israel on May 24 to suspend military actions in Rafah, which could inflict living conditions that would lead to the physical destruction of “the group”, i.e. the Palestinians. The wording of the decision seems to indicate the choice to give Israel a warning: the Court has not yet decided on the merits whether there is genocide. The Israeli government, therefore, must be careful not to carry out acts that could later be interpreted as genocidal. As for the question of merit – that is, whether it is a crime of genocide – it is foreseeable that we will have to wait one or two years for the Court’s ruling. In the meantime, the Court insists on asking for the adoption of provisional measures, aimed essentially at putting an end to the massive killings and all other serious violations of the norms of international humanitarian law. With respect to these, the International Criminal Court will have the jurisdiction to judge and punish the individuals responsible.

It can now be seen that one of the parties to the conflict – the State of Israel – is the recipient of obligations that it does not respect, and on a political level it is “covered” in the United Nations Security Council by a permanent member with the right of veto, the United States. The other party, Hamas, is not a State and is not even attributable to the entity that the international community and the UN recognize, the Palestinian National Authority (PNA). Moreover, this is anything but an authority in the full and legally correct sense of the term. The PA is not a member of the UN and, therefore, is not bound to respect the decisions of the International Court of Justice. On the other hand, the PA is a party to the Rome Statute of the International Criminal Court, but it does not control Hamas, which, instead, controls the Gaza Strip, the territory in which some crimes are committed, including those for which three of its senior political and military leaders are potentially indicted. Similarly, the Israeli leadership is unreachable because the Netanyahu government has no intention of cooperating with the International Criminal Court and, indeed, challenges its authority.

The international judicial system and both courts in The Hague are based on a commitment by states to give their full cooperation. Unfortunately, neither party is willing to give it, and this does not bode well for the future of international justice.