World Courts Sans Enforcement
Now that Bibi 's arrest warrant has been issued by the ICC, does it really mean anything? Do we really care?
This week we take aim at the International Criminal Court (ICC) and law and justice on a foreign scale. I was fascinated with NGOs and specifically multinational organizations while in college. But later on, as I became more enlightened (and jaded) I realized they were pipe-dreams at best. I am an amatuer at best with the ICC, and had to read their FAQ I will admit, but I was under the impression that the ICC actually functioned as a jurisdictional court. What I mean by that is, the power to jurisdictionally enforce some sort of punishment and accountability. Surprise: It’s not. It’s pretty typical of neo-liberal “window dressing” to look accountable, but in fact have no real way to hold someone accountable until it is all over. When everyone is dead. Shouldn’t there be a better way? Let’s look into the ICC particulars.
On 21 November 2024, the ICC, in its composition for the Situation in the State of Palestine, unanimously issued two decisions rejecting challenges by the State of Israel and issued warrants of arrest for Mr. Benjamin Netanyahu and Mr. Yoav Gallant.
Gaza and Palestine are an abyss of concrete, human bones, and copious mutilated empty promises by the international community. One point nine million people displaced. Forty-three thousand people killed. Ten thousand of those estimated to be under the rubble of hospitals and other things. “War” is actually a kind word here. It implies two foes are actually fighting each other, rather than rampant killing of civilians that is has been. It has been more like genocide. In the 90s, when Yugoslavia was ripping itself asunder, we learned the lesson of “waiting and seeing” with ethnic cleansing. Rwanda too. But I’m not here to tell you something you already know! Let’s actually look at the way the ICC works.
The ICC deals more on the meta-side of crimes like something that you might see in a Sid Meier’s Civilization series more than the real world. The ICC prosecutes four major subsets of prohibitive crimes: (1) genocide; (2) crimes against humanity; (3) war crimes; and (4) crimes of aggression. The first three are pretty self explanatory, with the last just being “acts challenging another state’s sovereignty” - so declaring war for territorial expansion in a gist. Here’s what Netanyahu and Gallant (allegedly):
bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023:
Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
Persecution as a crime against humanity contrary to article 7(1)(h);
Other inhumane acts as crimes against humanity contrary to article 7(1)(k).
ICC Office of the Prosecutor, Karim A.A. Khan KC
But before we unpack these crimes and what they may consist of, we need to know the players around the board. First up, the Office of the Prosecutor (OTP).
Karim A.A. Khan
Scottish-Pakistani lawyer (54 YO)
Worked for Office of Prosecutor since 2021
Between 1993 and 1996 Khan was a Crown Prosecutor at the Crown Prosecution Service of England and Wales, and was appointed a Senior Crown Prosecutor in 1995
Between 1997 and 1998, Khan worked as a Legal Officer at the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY). He later served as Legal Adviser at the Office of the Prosecutor at the International Criminal Tribunal for Rwanda (ICTR) until 2000
Applied for arrest warrant for the Myanmar military junta leader, Min Aung Hlaing, in November 2024 as well
So the OTP is elected to a single nine-year non-renewable term by the Assembly of States Parties (ASP), a body of “representatives” by the states that have acceded to the Rome Statute, which is the governing document of the ICC. Judges of the ICC are elected the same way, by the ASP. Khan is definitely qualified for the role, and has already worked in two places (Rwanda and Yugoslavia) I already mentioned above. Part of what I am wondering about is…
…how much do actual citizens (like Palestinians who are being bombed) have a say in this prosecutor’s direction he takes his cases?
Assembly of States Parties
Every country that has ratified the Rome Statute has a representative in the ASP. The ASP representatives are those who “is proposed to the Credential Committee by the Head Of State of government or the Minister of Foreign Affairs (Chapter IV of the Rules of Procedure of the Assembly of States Parties).” So in the U.S. the President or Secretary of State would appoint the representative.1 None of these people are actually “elected” and it says so in the Rome Statute. This is also not something very surprising when you think about most “representatives” to the UN or otherwise - there is no actual election for their posts. But then again, the United States never ratified the Rome Statute to even be a part of the ICC…2
So, like, no?
I interrupt this boring analysis for some actual opinion. In legal land we have this thing called “jurisdiction.” Jurisdiction means, if you do something bad, does the court have jurisdiction over you and your acts to punish you. Look at the scenario before us - Israel is a part of the ASP but the U.S. is not. You can see where I am going here. If Israel is to be held accountable, the U.S. has to be as well. Israel has gone full oppressor and Biden cackles in the background.
How in the world (pun intended) does the ICC have jurisdiction over all of these actors in order to bring “justice?” If that is the goal of the prosecutor de jure then this seems to be more like hand-wringing performative cosplay than actual accountability.
The U.S. government certainly sees it that way:
Today, Congressman Don Davis (NC-01) voted in support of H.R. 8282, the Illegitimate Court Counteraction Act, bipartisan legislation that passed by a margin of 247-155. The legislation would impose sanctions on the International Criminal Court (ICC) and affiliated entities and individuals seeking to impose undue legal action on Israel and other American allies.
“We must stand with our democratic allies around the world as they face threats from terrorists and state sponsors of terror,” said Congressman Don Davis. “Attempts by international courts to punish our allies for defending their very existence distract us from the true threats to our national security. In these challenging times, the free world must always stand together, united and strong, against those who seek to undermine our shared values and freedoms.”
Don Davis, U.S. Congressman - 1st District North Carolina
Listen, we could do a legal analysis and break down the charges, rage against the dying light and etc. But why? The ICC is another concoction by the people with many faces, an affection for smoke and mirrors, the neo-liberal “big brother” that was born after the Second World War. It is nothing more than something world leaders whisper to themselves over and over to help them sleep at night as they clutch their constituents’ cash. I’d like to say that Netanyahu may actually face a criminal trial in the next 20 years, but it isn’t even up to the ICC if he gets arrested: Israel has to hand him over.3 Here’s the other thing: the ICC also issued an arrest warrant for Hamas commander Mohammed Deif the same day as the previous discussed warrants. If the United States helps Israel and they obliterate Gaza and Palestine, and capture Deif- guess who the ICC will be meting out justice to?
So, I’m not fucking with the ICC or the UN or anyone of those other NGOs from now on. I thought it would be interesting, but it seems as though it would be more of an exercise of urinating southeast while a large gust of wind from the southeast blows towards you.4 Yeah not doing it.
Here’s just a general message. This publication is not solely about theory and well wishes for the future. This publication deals with the now.
This publication is about the not so niceties of the criminal justice system, the hard truths and what have you. This is rolling-your-sleeves-up and wringing the neck of the fucking algorithm that is your life. This is about what justice actually means, not how it is defined.
If you’ve been waiting for something like that, you have arrived.
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-HJRC
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See Myers v. United States for a more detailed explanation of why the President has this power and what Congress can actually do about it.
Trump sanctioned members of the ICC previously, which were withdrew with Biden
While realizing this while writing, the ICC only really prosecutes “losers” i.e., losers of wars or respective civil wars because of the fact that the home state would have to actually arrest and bring in the leader. The only situation I see this possibly happening is with the capture of the leader by other forces e.g., U.S. invasion of Iraq (but we also are not a party to the ICC to fuck off)
Sorry Prof Jupille! I loved the EU as a concept until I realized it’s a fucking joke