How to make war crimes accountable?

History was made when on May 24 the International Court of Justice (ICJ), in a mandatory ruling of 2-13, asked Israel to cease its military operations in Southern Gaza and open Rafah crossing in order to provide emergency assistance to the beleaguered Palestinian population of Gaza. Prior to that on May 20 prosecutor of International Criminal Court (ICC) had requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, Hamas Chief Yahya Sinwar, Commander of Hamas military wing Mohammad Al-Masri and Head of Hamas Political Bureau Ismail Haniyeh. Both the rulings have, however, failed to have any bearing on Israel because of the lack of enforcement capacity.

When the ICC prosecutor called for the issuance of arrest warrants for the Israeli Prime Minister, the Defense Minister and three leaders of Hamas, the reaction was mixed. Earlier, the ICC had issued arrest warrants for former President of Sudan General Omar Hassan Ahmad al-Bashir and Russian President Vladimir Putin on charges of war crimes but failed to get its orders implemented. The Office of Prosecutor ICC, justifying request for the issuance of war crimes against Israeli and Hamas leaders, stated: “My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel. We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organizational policies. Some of these crimes, in our assessment, continue to this day.”

If Hamas leadership was implicated by ICC to initiate war against the Jewish state on October 7, 2023 by attacking Israel, the Israeli Prime Minister and Defense Minister were held responsible for committing crimes against humanity by ceaseless attacks against Palestinians, killing more than 35,000 people and displacing millions. Both Hamas and Israel criticised the ICC decision on different grounds. Hamas argued that the ICC equated victim with executioner whereas Israel condemned the request for issuance of arrest warrants. And now, the ICJ ruling on cessation of Israeli military operations in southern Gaza and opening of Rafah crossing may not have any impact on the Jewish state because of the US backing.

Prior to the ICC’s bold step to issue arrest warrants against Israeli officials and Hamas leadership, the court had, on the South African request, held Israel responsible for the genocide of Palestinians since October 7 last year. Elaborating his request to issue arrest warrants, ICC prosecutor Karim Khan stated: “Israel, like all states, has a right to take action to defend its population. That right however, does not absolve Israel or any state of its obligation to comply with international humanitarian law.” Likewise, “Hamas leaders face allegations of bearing responsibility for crimes committed by the group including extermination and murder, and other acts of violence.”

So far out of 193 UN members, 123 adhere to ICC and commit to immediately arrest the wanted person if they are on a member state’s territory. It is yet to be seen how ICC will use its moral authority to get its decision implemented in case of war in Gaza but by requesting issuance of arrest warrant against the Israeli PM and Defense Minister, the ICC further exerted pressure on the Jewish state by providing ample evidence of Israel denying food, water, medicine and energy to augment the sufferings of the besieged Palestinian population of Gaza since October 7.

Well-documented and well-researched evidences provided by ICC against the Hamas leadership and the Israeli government of killings, abductions, ceaseless bombings of civilian population of Gaza cannot be denied. War crimes against humanity whether committed by a state or a non-state actor are reprehensible and those responsible must be taken to task. Composed of a panel of judges, the ICC collected hardcore evidences from multiple sources forming the basis of its request that arrest warrants be issued against the two highest Israeli government officials and three top Hamas leaders.

The ongoing debate on ICC’s prospector request to judges for arresting Israeli officials and Hamas leaders on charges of war crimes needs to be examined from three angles.

First, making war crimes accountable would require political will and determination particularly for the powerful states to not endorse blatant violation of human rights. Both the US and Russia refuse to endorse the ICC steps to punish war crimes. When the ICC endorsed Putin’s arrest for alleged war crimes in Ukraine, Moscow was outraged and refused to comply with the verdict. Putin failed to show up for BRICS summit in South Africa for the fear of his arrest. US President Joseph Biden totally rejected the ICC-demanded arrest of the Israeli PM and Defense Minister for the war crimes in Gaza. When war crimes are committed with the connivance of powerful states, international institutions like the ICC, ICJ and UN appear helpless in implementing their decisions. War crimes and genocides are bound to continue when those who are supposed to prevent such acts are themselves involved.

Second, legitimacy is the issue because the imposition of international humanitarian law would remain a myth as the world order is devoid of accountability of those who get a free hand in committing war crimes and are able to get away. There must be a consensus among permanent UNSC members that they will have zero tolerance for all such acts which target non-combatants and adopt the use of genocide as a policy of state. War crimes and genocide are not a new phenomenon but after the end of the WWII, one can observe massive involvement of state and non-state actors in committing acts which clearly violate the UN charter. When there is a lack of accountability and punishment in cases of gross violation of human rights in the form of war crimes or genocide, the outcome is chaos and disorder in the global order, which can trigger another round of global hostilities in the shape of a third World War.

Finally, rejection and hatred against war crimes and genocide is possible when steps are taken at the grassroots level, like focus in educational syllabi on zero tolerance for crimes against humanity. When truth is unveiled on how war crimes and genocide are committed by various countries, policymakers will also transform themselves and respect human rights.

Published in The Express Tribune, May 28^th, 2024.

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