The pre-trial chamber of the International Criminal Court (ICC) rejected Israel's challenges to the court's jurisdiction and issued warrants for the Israeli Prime Minister Benjamin Netanyahu; former Israeli Defence Minister Yoav Gallant, and the military commander of Hamas Mohammed Diab Ibrahim al-Masri (Deif). There are expectations for their arrest and for the international criminal law to take its course, but doing so will not only be challenging, but also difficult.
Countries that are members of the ICC have not complied with its decisions to arrest high-profile accused in the past. Jordan, a member of the ICC, had refused to arrest Omar Al-Bashir, who was ousted as Sudan's president on April 11, 2019, and was wanted by the ICC on charges of genocide, crimes against humanity, and war crimes during the Darfur conflict. Jordan justified this contemptuous act by maintaining that he could not be arrested, being the head of a state that is not a member of the ICC. However, the appeals chamber of the ICC held that a sitting head of state does not enjoy immunity from arrest for alleged grave crimes even when he/she is from a country that is not a member of the ICC.
Similarly, Mongolia is a member of the ICC but refused to arrest Russian President Vladimir Putin, whose warrants were issued for the alleged illegal deportation of Ukrainian children to Russia and Russian-controlled territory.
The US, which is not a member of the ICC, however, had welcomed the issuance of arrest warrants for Putin, but has now 'fundamentally' rejected the issuance of warrants against Israel on the ground that both cases are distinct from each other, as Palestine is not a sovereign state while Ukraine is, and though Ukraine is not a member of the ICC, it has granted another sovereign country to intervene on its behalf.
When the Darfur conflict was referred to the ICC by the UN Security Council (UNSC), the US allowed it by abstaining from voting along with Algeria, Brazil and China. The US, under President Donald Trump, had imposed sanctions on the ICC for investigating war crimes committed by US forces in Afghanistan, by former ICC Prosecutor Fatou Bensouda. But the current ICC Prosecutor, Karim Khan, decided to close the investigation, and the US under the President Joe Biden lifted the sanctions on ICC.
The US and the North Atlantic Treaty Organization (NATO) considered themselves heroes for their humanitarian intervention and for saving the Muslims of Bosnia and Herzegovina from ethnic cleansing in the aftermath of the disintegration of Yugoslavia. Louise Arbour, the prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), alleging crimes against humanity being committed during Kosovo's air campaign by NATO, ordered an internal staff review, thereby implying that the ICTY did have jurisdiction over the alleged crimes committed by the NATO, especially the US. However, her successor, Carla Del Ponte, declined to indict any NATO official because of the inability to identify individual criminal responsibilities, which would appear to be the victory of the US and its allies. But it again implied that the ICTY indeed had jurisdiction over NATO and the US leaders in the Balkans if the involved accused leaders or individuals had been successfully identified.
Pakistan, too, is not a member of the ICC, but it has faced the issue of its civilians suffering from war crimes - being targeted by US drones
The ICC had then refused to investigate China, a permanent member of the UNSC, for allegedly committing genocide against the indigenous Uighur community, for not being a member of the ICC.
The ICC had also refused to prosecute the UK for aggression and going to war in Iraq in 2003, even though the Chilcot Report had held the British Prime Minister responsible. The Lord Chief Justice, Lord Thomas of Cwmgiedd, and another senior judge, Justice Ouseley, of the High Court, also absolved Prime Minister Tony Blair from his role in 2003 Iraq war, on the ground that there was no crime of aggression in English law under which the former prime minister could be charged.
Many scholars of international relations and law were hopeful that the US would be held accountable for the atrocities which it had committed in Vietnam. However, only one officer, William Calley, was ever convicted in connection with the My Lai massacre during the Vietnam War, and carrying out the mass murder of hundreds of civilians, including women and children. He was sentenced to life in prison in 1971, charged with the killing of 22 civilians. But after serving just three days in prison, he was released under house arrest by then-US President Richard Nixon.
Like the US and China, Pakistan, too, is not a member of the ICC, but it has faced the issue of its civilians suffering from war crimes - being targeted by US drones. In a landmark verdict by the Peshawar High Court in this regard (Writ Petition No.1551-P/2012) which made history for declaring the use of drone attacks and killing civilians illegal under international law, and going as far as to direct the government of Pakistan to sever all ties with the US if it continues to violate international law. However, while this landmark judgment is recognised by the International Committee of the Red Cross, the Pakistani authorities are expected to not take any action against its's allies for committing international crimes.
France's claim that Israeli Prime Minister Benjamin Netanyahu was immune from the jurisdiction of the ICC on account of Israel not being a member of the ICC, is thus incorrect and unfounded.
The US and its allies may not recognise the jurisdiction of the ICC, for they fear that they, too, can be held accountable in the future. But the ICC has indeed made history for issuing the arrest warrants against the Israeli Prime Minister. The global court has thus far overseen 32 cases, issuing 59 arrest warrants, detaining 21 people, 30 remaining at large, dropping charges against seven due to their deaths, summoning nine to appear, convicting 11 and acquitting four. But for the law to truly develop, the permanent members of the UNSC have to accept their responsibility and act as civilised nations to uphold the law, which might not be possible at this point in time, but with the progress being made so far, it can be expected, even in the face of so many challenges.