Is Israel acting like the ICC is ‘only for Africa and thugs like Putin’?

Two recent legal judgements from international courts could potentially undermine support for Israel.

Israel’s isolation appears to be growing amid rising criticism following the deadly strike on a camp for displaced people in Rafah on Sunday, and a subsequent attack on Tuesday.

Two international legal developments in the last week have also divided the international community.

On Friday, the International Court of Justice (ICJ) issued a ruling ordering Israel to halt its ongoing assault and withdraw its troops from Rafah.

On May 20, the International Criminal Court’s (ICC) chief prosecutor applied for warrants for the arrests of senior members of both the Israeli and Hamas leadership.

The ICC warrant application triggered angry protestations, not only in Tel Aviv and from Hamas spokespeople, but also in Washington and London – two capitals that had fully supported the ICC when it requested arrest warrants for Russian President Vladimir Putin and Russia’s commissioner for children’s rights Maria Lvova-Belova following the invasion of Ukraine in 2022.

For those in Gaza, whether the rules-based international order eventually comes to their aid or not means little in the face of the deadly consequences of Israel’s daily assaults.

In an English language video, posted presumably for consumption in the United States, Israel’s Prime Minister Benjamin Netanyahu accused the ICC’s Chief Prosecutor Karim Khan of being one of the “great anti-Semites in modern times”, comparing him with the judges in Nazi Germany.

Hamas were equally vitriolic, saying Khan’s requests were an attempt to “equate the victim with the executioner by issuing arrest warrants against a number of Palestinian resistance leaders”.

“The broader attacks against the ICC emanating from the US and the UK over the past week … only lend further support to the damaging narrative that the ICC is an exercise in selective justice dictated entirely by politics, carries out its mandate with an ‘Africa bias’, or is simply a new incarnation of ‘victors’ justice’,” Michael Becker, professor of international human rights law at Trinity College, Dublin, who previously worked at the ICJ, said.

“The values that underlie the ICC do not allow for one set of rules for democratically elected leaders and another set of rules for everyone else”.

Under the terms of the Rome Statute, which established the ICC in 1998, all 124 signatories have a duty to arrest any of those wanted by the court if they are present on their territory. Neither the US nor Israel are parties to the statute, while Palestine was recognised in 2015 as falling under ICC jurisdiction, allowing it to investigate violations perpetrated on Palestinian territory.

Some states may consider applying Article 98 of the Rome Statute used to establish the ICC, which cites the precedence of international norms and law, thereby appearing to allow immunity for heads of state, to avoid having to arrest Netanyahu.

However, in 2019, the ICC Appeals Chamber appeared to interpret Article 98 to mean that states cannot invoke immunity rules under international law to avoid enforcing such warrants in relation to the outstanding arrest warrant for Sudan’s former President Omar al-Bashir.

Is the ICC ‘built for Africa and thugs like Putin’?

This suggests that Article 98 should provide no refuge for Netanyahu if he travels to an ICC member country.

“In some ways, the ICC’s decision to call for an arrest warrant in relation to Netanyahu and [defence minister Yoav] Gallant would suggest that the old complaint that the ICC is a Western instrument no longer quite holds,” Gerry Simpson, a professor of international law at the London School of Economics said.

However, with the US repeatedly showing itself willing to use its UN Security Council veto to stop any binding measures against Israel, Gaza’s best hope may remain the “rules-based order” previously espoused by many of the world leaders now at pains to clear legal hurdles from Israel’s path.

After Friday’s ICJ order spread some optimism in Gaza and among countries working to end the assault on the enclave, Israel’s continued bombardment of Rafah was a shock.

According to the order, “Israel must immediately halt its military offensive, and any other action in the Rafah Governorate” which may bring about “the physical destruction” of the Palestinians – alluding to what constitutes genocide under international law.

However, Israel described it as “ambiguous”, contrasting sharply with the views expressed by much of the rest of the world.

Asked if the US supports Israel’s interpretation of the ICJ ruling and whether it would enforce possible ICC arrest warrants, a US Department of State spokesperson told media that US policy – including several mentions of “red lines” over Rafah that have not stopped any attacks – has “remained clear and consistent”.

The ICJ’s finding also said that “the current situation arising from Israel’s military offensive in Rafah” creates a risk of harm that might compromise the rights of Palestinians in Gaza under the Genocide Convention – language that could be interpreted as ordering a complete halt to the offensive in Rafah.

However, the inclusion of “may” and the intent to “bring about physical destruction in whole or part” did much of the heavy lifting in Israel’s reading of the order, according to Geoffrey Nice, who was the lead prosecutor in the war crimes trial of former Serbian president Slobodan Milosevic in The Hague.

“It clearly does not order a complete cessation of military activity,” he wrote to media, “It does not say that Israel cannot defend itself or attempt to recover the hostages. What it says needs to be read with precision and without wishing to see a particular conclusion one way or the other.

“The court has focused on what can be genocidal outcome rather than – and without necessarily being driven by – genocidal intent,” he said, explaining the different interpretations of the text.