The Judge at The Hague

GIOVANNI LEONE
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To Abhor War

Civil society abhors war (from ab-horrēre which is to have in horror) but it is not enough to invoke peace. War, although horrible, can have a basis of legitimacy under certain conditions in relation to the contexts, circumstances and ways in which it is fought. Not everything is possible in war. Let those who govern come to terms with it and politics take note of it, rather than complaining about a sort of lèse majesté, almost as if the crimes are valid for others, but not for themselves … except that the law is the same for everyone! There is a need to reign in the pervasiveness of politics in order to lessen the distance that separates it from ordinary people, who in their daily lives must respect the laws, even for punctuation errors.

Criminals or Statesmen?

It was clear to any objective and impartial view (the same as the law should always have) that attacks on civilian populations in Israel and Palestine are criminal conduct. With the request to the court to issue arrest warrants for war crimes and crimes against humanity against Yahya Sinwar (leader of the political wing of Hamas), Mohammed Dayf Ibrahim al-masri (Palestinian general, commander of the Izz al-Dīn al-Qassām brigades, the military arm of Hamas), and Ismail Haniyeh (leader abroad), but on the other hand against Israeli Prime Minister Benjamin Netanyahu and the Defense Minister Yoav Gallant, the chief prosecutor of the International Criminal Court in The Hague, Karim A. A. Khan [in the cover image], brought the conflict in the Holy Land back into the context of respect for international norms complementary to the national ones that the international community has adopted to prosecute crimes that concern it as a whole, such as crimes against humanity, genocide and war crimes. In addition to these was crime of aggression, invoked by Israel to be justified with an excessive interpretation of the right to defense and exercised beyond measure with obstinate perseverance. It has not wanted to listen to reasoning from anyone, not even friendly governments, placing itself in a harmful condition of international isolation that must now be overcome if we truly want to build peace, turning to civil populations to get rid of an extremist political class. On the other hand, many of the supporters of the Palestinian cause have tried, with Hamas, to question Israel’s very right to existence, so on this side the extremist fringes must also be isolated and put in a position not to cause harm.

It is the first step, of course. It remains to be seen first of all whether the Court will accept the request and what developments the matter will take, but it is an important signal. There are elements that will need to be carefully evaluated by studying the documents: on the Palestinian front, the request is to prosecute both the perpetrators (the fighters of the Al Qassam brigades) and the instigators (the political wing), while in the case of Israel the military is left out, almost as if to imply less autonomy or even dissent within the military ranks. However, a share of responsibility should be borne by the leader of the of the military if it has carried out criminal orders. These are jurists’ details with political reverberations that will be seen later. So far it has been interesting to note the resentful reaction of both sides in finding themselves lumped together in the criminal sphere with the enemy, almost as if they consider justice to be fair only when favorable to their side, and politicians’ inability to tolerate seeing themselves judged.

The Law Applies to Everyone

The reactions of politicians appear inappropriate, unseemly, just as in everyday life politics often demands subjecting the weak to compliance with laws that politicians want to be strong against the weak and weak against the strong. In 2020, when the ICC authorized the investigation by the International Prosecutor’s Office into possible war crimes and crimes against humanity committed in Afghanistan since 2003, the United States government decided to sanction individual officials of the court. With Executive Order 13928 then President Trump authorized economic sanctions, the freezing of assets and travel restrictions against ICC members directly involved in the investigation of U.S. soldiers and intelligence officers, attacking the institution’s judicial independence and its impartiality in criminal proceedings in a way that could compromise access to justice for victims. The Trump Administration itself had already warned the Court in December 2019 over launching investigations into possible crimes committed in the West Bank, East Jerusalem and Gaza, sending the message “think it over a bit, I demand you don’t even investigate!” The activism of US politicians returned on April 24 of this year, when some senators wrote to Attorney General Khan, saying that “If you issue an arrest warrant against the Israeli leadership, we will interpret it not only as a threat to Israel’s sovereignty, but also to the sovereignty of the United States. Our country has demonstrated with the American Service-Members Protection Act how far we will go to protect that sovereignty. (…) Target Israel and we will target you. If you move forward with the measures outlined in the report, we will move to end all American support for the ICC, sanction your employees and associates, and ban you and your families from the United States. You have been warned.”

The ICC’s report was not a bolt out of the blue, but rather a healthy reminder of the obligation to respect the laws, all of them, and first and foremost the rules of international law. The bell, or rather the alarm bell, had rang vigorously with the court order no. 192 of 26 January 2024, with which the International Criminal Court asked Israel to do everything possible to “prevent possible genocidal acts in the Gaza Strip and to allow access to humanitarian aid”. The request was arrogantly ignored by Israel, which relied on the umbrella that the USA has never failed to provide, despite criticism for the tragedy knowingly implemented in Gaza after the unbearable massacre of October 7, almost as if it sees its superpower ally like a faithful dog that barks but doesn’t bite. Instead, the court was forced to bite, despite threats and intimidation received from politicians. Now it will have to considered and accounted for.

Karim A. A. Khan briefs the UN Security Council on the situation in Libya, 14 May 2024 (UN Photo/Loey Felipe)

The International Criminal Court

The ICC has links to the United Nations (for example the Security Council has the power to refer situations to the Court that would otherwise not be under its jurisdiction), but is not an organ of the UN and should not be confused with the United Nations International Court of Justice, also based in The Hague. The Court has jurisdiction complementary to that of individual states, in the sense that it can intervene if and only if states are unable (or unwilling) to act to punish international crimes.

The independence of the three powers – legislative, executive and judicial – is a pillar of democracy. To exercise its role of guarantor, the judiciary must be independent, including the international one. For this reason, the International Criminal Court must be supported against a pervasive policy, which viciously claims to exempt legislative and executive political power from any control. Let us beware of those who reduce the spaces of protection and guarantee. The attempts at interference and influence are numerous: we have seen it with the disputed Israeli judicial reform of 2023, we see it here in Italy with the proposed so-called reform of the premiership (which aims to drastically reduce the powers of control and guarantee of the President of the Republic), and in numerous other cases, such as the threats made against ICC judges in an attempt to stop the indictment that has now been requested.

The ICC has supranational jurisdiction and can try individuals (not States) responsible for crimes within its jurisdiction committed on the territory and/or by one or more residents of a State Party, in the event that the State in question does not have the capacity or the desire to proceed according to the laws of that State and in harmony with international law. It follows that crimes committed on the territory of a State Party by a citizen of a non-Party State also fall within the jurisdiction of the Court. There are 124 countries that are parties to the Rome Statute, while another 32 countries have signed but have not ratified and do not intend to ratify the treaty (including Israel, Russia, the United States and Sudan). Among the five permanent members of the Security Council, France and the United Kingdom have joined the International Criminal Court, while the USA, China and Russia have not joined.

It is therefore clear that the great powers have all but agreed to demand impunity for themselves and for the countries that are their friends, allies or under their protection. Government leaders must understand that acting in a discretionary manner outside the rules is a manifestation of free will that entails precise and inevitable responsibilities. The indictment is an important signal that politics should value and that international public opinion must be made aware so they can side in defense of the law and against the arrogance of the powerful. It must be taken into account that it is not the court’s job to promote peace: that must be achieved with a political orientation that looks to the outlet of diplomacy, initiating negotiations and mediations between the belligerents on the basis of new political directions imposed by the civilian population and public opinion. The public, for its part, must prove capable of distancing itself from rulers suspected of such serious crimes, isolating the extremist fringes, and supporting and strengthening international institutions.

Translation by Paul Rosenberg

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The Judge at The Hague ultima modifica: 2024-05-21T16:00:18+02:00 da GIOVANNI LEONE
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