As the genocide in Gaza continues into a second year, Israel and two Israelis in particular – Netanyahu and his Defense Minister Yoav Gallant – face accusations of some of the gravest crimes known to humankind.
The state of Israel is facing a genocide case at the International Court of Justice (ICJ), while Netanyahu and Gallant could become actual accused war criminals with International Criminal Court (ICC) arrest warrants against them.
That threat of ICC warrants, according to two prominent figures of the international justice system, leaves Netanyahu at significant risk, both in the political and legal realms.
Currently, a Pre-Trial Chamber of the ICC is deliberating upon prosecutor Karim Khan’s request for warrants against the Israeli premier, defense minister, and Hamas leaders.
Should the ICC go ahead with the warrants, Netanyahu will effectively be branded an accused war criminal, and more than 120 countries, would be legally obliged to arrest him if he steps foot on their territories.
‘Huge development’
Reed Brody is a renowned war crimes prosecutor who had been involved in the prosecutions of Chile’s former President Augusto Pinochet and Chad’s former leader Hissene Habre.
In his view, an ICC arrest warrant against Israeli leaders, particularly Netanyahu, would be “a huge development in international criminal law.”
“This would be the first time in modern history that the (ICC) prosecutor has sought and would be granted an arrest warrant against a Western ally,” Brody told Anadolu.
“Up until now the institutions of international criminal law have been aimed either at vanquished adversaries … against powerless despots and rebels or against enemies of the West, like Vladimir Putin or Slobodan Milosevic.”
If issued, the warrants would label Netanyahu and Gallant “as accused war criminals,” he said.
However, he pointed to what he views as the “main weakness of the international criminal justice architecture,” which is the lack of an enforcement mechanism.
“Obviously, nobody is going to come and capture them (Israeli leaders) in the first instance,” he said.
“The prosecutors of the ICC have never sustained the atrocity conviction of any state official, at any level, anywhere in the world, mostly because they don’t get their hands on these people. They don’t have a police force.”
However, the warrants have “an importance beyond the capture or the immediate capture of these people,” he said.
“These crimes are crimes that have no statute of limitations as long as the arrest warrant remains viable,” Brody explained.
“It could be five years, 10 years or 20 years. These things don’t go away.”
On the obligations of the state parties to the ICC’s Rome Statute, he said 124 countries around the globe “legally would be obliged to execute the arrest warrants.”
He said there is growing “international consensus regarding the criminality of Israel’s actions.”
“I think that an arrest warrant issued by ICC judges would support, augment and consolidate the consensus that what Israel is doing is criminal,” he said.
‘Unprecedented breach of Israel’s impunity’
While Israel’s genocidal assault has led to immense suffering for the people of Gaza, Brody said, it has also become “an historic turning point in efforts to hold the Israeli government and its leaders accountable for their crimes.”
The legal actions initiated at the ICJ and ICC are an “unprecedented breach of Israel’s decades-long impunity” and represent an “unprecedented response by the two main institutions of International justice,” he said.
For the ICC, Brody said the court and its judges are facing immense intimidation and pressure from Israel.
“I don’t think we’ve ever seen this kind of international intimidation of a prosecutor as we’re seeing from Israel,” he said.
Complaints from Palestinians, he added, have been on the tables of ICC prosecutors for the past 15 years, who have faced “unrelenting pressure, in particular from Israel, but also from Israel’s allies like the US.”
He cited the example of Washington imposing sanctions on the previous ICC prosecutor Fatou Bensouda and members of her staff because of their investigations into actions of the US and Israel.
Brody views Khan’s public announcement of his request for warrants, and his comments about how these acts of intimidation could amount to obstruction of justice, as “an amazing step.”
“I admire the courage of the previous prosecutor Bensouda, as well as Khan, to do this in the face of this kind of Israeli and US pressure,” he said.
‘International Criminal Tribunal for Israel’
Another known name in the international justice world is Francis Boyle, a veteran human rights lawyer who won two requests at the ICJ in 1993 under the Genocide Convention for Bosnia and Herzegovina against Yugoslavia.
In the current situation “the World Court has done the best it can with three orders and one decision against Israel,” he said, referring to the ICJ’s provisional orders in South Africa’s genocide case and its ruling declaring Israel’s occupation of Palestinian territories illegal.
Regarding enforcement of the orders, he said: “It’s not their problem. It’s the problem of the Biden administration giving a green light for all the atrocities Israel has inflicted against the Palestinians in Gaza and now the West Bank, where pogroms are happening as we speak.”
This US support has led to a place where “now Israel is attacking Lebanon committing war crimes and crimes against humanity,” he said.
Boyle called for the formation of an “International Criminal Tribunal for Israel,” explaining that it can be proposed under Article 22 of the UN Charter as a subsidiary organ of the UN General Assembly.
“I have proposed this International Criminal Tribunal for Israel, along the lines of the International Criminal Tribunal for the Former Yugoslavia (ICTY), that did a lot to try to stop the genocide against the Bosnians,” he said.
It would function exactly like the ICTY and “the statute would be the same, the rules of procedure, everything,” he added.
“I think if this is done immediately it might dissuade the Zionists from going further into Lebanon and more genocide against the Palestinians … (It) could have an impact in stopping the Zionist plan for a greater Israel over all of the mandate for Palestine, Lebanon, up to the Litani River, as well as the Golan Heights.”