It’s shameful that it took ICC order for action to be taken against Israel

The warrants issued are simultaneously for three men, Benjamin Netanyahu, Yoav Gallant and Mohammed Diab Ibrahim Al-Masri (Deif). Two separate news releases were made and the timing – immediately after the United States once again vetoed a ceasefire resolution in the United Nations Security Council – is at the very least “interesting”.

Justice is a slow, slow process. It has to be. Haste is deadly. Haste makes egregious mistakes, almost always. Evidence gathering is slow. So is the process of consideration of evidence. And so is the time taken to get a first, second, third, fourth, fifth, and apparently in the case before us, sixth legal opinion.

But still.

For those of us doing all we can in the face of the horrifying pain and the injustice livesteamed into our devices, and the shredding of international laws and instruments in front of our very eyes, the frustration has been at screaming point for a long time. It has been utterly compounded by watching the evident hypocrisy and complicity of the so-called West – mostly the United States, United Kingdom, Germany, and Canada.

Our leaders have been morally deficient. We know this. They have failed to act for the State of Palestine, through the levers of justice available and have instead engaged in an appalling litany of actions: Defunding the United Nations Relief and Works Agency (UNRWA) at Israel’s unevidenced say-so; building a pier for so-called humanitarian purposes which turned out to be for military use; telling us aid is entering the Strip when every humanitarian worker and medical worker has seen with their own eyes and stated – including under oath – compelling evidence of starvation, the killing of civilians, the prevention of Palestinian births, the deliberate targeting of civilians, the mass detention, torture and humiliation of Palestinian doctors, the bombing of all hospitals, all universities ... the list has become a litany. A litany of atrocities. That enrages and depletes and energises for action.

The sifting of academic evidence to reach an opinion, or the scrolling through too many images of too many children’s bodies in pieces and under the rubble to reach an opinion is not the same as a legal opinion.

A legal opinion is an entirely different thing and it is reached using case law, and legal argument, which – to those of us who are untrained – is really quite a strange process. But it is one of the things that keep our violent tendencies and illiberal ways as human beings in society, in check, and sets norms and limits which might give us one way of living together reasonably well.

This is why it is indeed a relief – however cynical we may now be – that the International Criminal Court has issued warrants. But it is more than this. The issuing of warrants also means there is a route for due process and for justice; for evidence to be heard, for defences to be mounted and for judgments to be made.

There should have been two other names listed, according to the application for warrants made by Chief Prosecutor Karim Kahn, on May 20, 2024 – that of Yahya Sinwar and Ismail Haniyeh.

READ MORE: Keir Starmer shamed for continued silence on Netanyahu's ICC arrest warrant

The extra-judicial killing of both by Israel, in Gaza and in Iran, mean that the opportunity for the International Criminal Court to hear the cases against these men, for the unlawful attacks on October 7 in Israel, were not only terminated, but also plunged the entire world into even deeper turbulence and insecurity.

On August 1, Israel claimed to have killed Deif in an airstrike on July 13. A Hamas spokesperson claimed Deif was still alive to AP on August 15, and the ICC are clearly issuing warrants in this belief too.

Extra-judicial killings are war crimes. They are war crimes precisely because it matters that “all people are equal before the law” and that judgments are not made by the aggrieved or the victims or the perpetrators, but by the independent judiciary. Justice matters to our ability to live free from fear. Even though access to justice is severely weighted towards those with means and, certainly for the last century or so, towards the countries of the so-called democratic West.

This, however, is changing. Through the post-colonial period and liberatory struggles in South Africa, from Apartheid, and in Latin and South America, legal systems and respect for international law have grown in line with the development of schools of law and teaching of it in universities. This has been a significant international endeavour with many from the so-called global south and nascent democracies learning their legal trade in the august law schools of the so-called global north.

The radical discomfort and squeamish inability of our prime ministers and foreign secretaries, and of the president of the United States and their spokespersons to see what is before their legally trained eyes, in their siding with Israel, an enrogued state, has also been a radical exposure of the West.

Without the issuing of arrest warrants, every country that is under the jurisdiction of the International Criminal Court could still equivocate. Now, to put it bluntly, if Best Friend Netanyahu comes to London Town to visit Best Friends Starmer and Lammy, then those latter friends will need to secure an arrest, in the Best Interests of their Best Friend, Netanyahu, or Gallant.

Indeed also, if indeed he is still alive, despite Israel’s claims to have killed him, Deif. And we have yet to see if the states which have colluded in their alleged war crimes will also find themselves subject to arrest warrants from the ICC. The push back against these ever being issued suggests at the very least that this is a known, legal risk.

In higher education, where our students look to us for learning on how to live a peaceful life, how to debate and deal with topics which, without scaffolding and multiple perspectives are simply too difficult to understand or deal with, our students have taken to mass protest as a result of a deafening silence. They are crying out for action in line with the norms of justice and human rights which our very institutions are compelled to educate them into.

What does this all mean, though, for the struggles for Palestinian and Israeli liberation from the profound grip of horrifying violence, death and death-cults, or what the international lawyer Diana Buttu has called “genocidal mania”?

READ MORE: Pro-Palestine campaigners gather for Glasgow demonstration despite Storm Bert

It means that international law is offering a route, no thanks to the ministrations of the West, Global North, the ageing democratic states with all of their assumed moral weight – but to the south. It means that The State of Palestine is exercising its right, under the Rome Statute, to pursue justice in the light of alleged war crimes and crimes against humanity. It has already taken 10 years to reach this point.

ICC records state: “On January 1, 2015, The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting jurisdiction of the Court since June 13, 2014.

“On January 2, 2015, The State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for The State of Palestine on April 1, 2015.

“On May 22, 2018, pursuant to articles 13(a) and 14 of the Rome Statute, The State of Palestine referred to the Prosecutor the Situation since June 13, 2014, with no end date.”

The application relating to these specific arrest warrants was made almost exactly a year ago.

“On November 17, 2023, the Office of the Prosecutor received a further referral of the Situation in the State of Palestine, from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, and on January 18, 2024, the Republic of Chile and the United Mexican State additionally submitted a referral to the Prosecutor with respect to the situation in The State of Palestine.”

The countries of the South are not perfect by any means but all those listed here are using international law as a means not just for their own liberation but to show their ability to be international actors of legal stature. The symbolism of South Africa being the one to make the application to the Intercultural Court of Justice (ICJ) – a different court to the ICC , and responsible for the Genocide Convention, not individual criminal cases for war crimes – is not lost on anyone.

What the arrest warrants show up is the hypocrisy and double standards of the West, but also that the international order is well on the way to being re-ordered. The West has to decide if it wants to only pursue justice for its friends of if justice is indeed applicable to all.

And the UK will need to decide whether they will accept the binding nature of this decision – for it is binding on all member states – of if it too, will go rogue.

WE can expect nothing of the US, who are not ICJ members, but have brought such ferocity of political opinion to the warrants that you can see it matters. Republicans are already threatening mass punishment of everyone who acts on the warrants.

Whatever.

We are going to see a lot of this in the years to come. Some threats may be carried out, but don’t hold your breath for consistency of follow through.

Equally, as the academic Neil Vallerly has pointed out in a recent article on democracy’s eclipse for Overland Journal, democracy itself is seeing its own dark underbelly being exposed, the one which is based in violence, denial of rights for some, especially its subjected populations, both under forms of colonial and imperial violence and enslavement in the past, and today under the weight of its ongoing exploitations of the south for wealth, labour and capital.

While waiting for political action and justice, which will not come quickly, as ordinary people we have a role to play in envisioning justice, mutuality, solidarity and popular education. For academics in holding to academic freedom and for enabling robust and considered debate and also for giving all of this time.

In the fraught spaces of activism and in the desperation to save lives, to see the killing stop, time is a luxury, everything is urgent. But the instruments that hold us in the form of international treaties, or, in oral cultures, of wise elders forming a circle and passing round a feather, or a pipe or a stick or a calabash as a signal that someone else is to speak their mind and be heard – these need time.

This moment, for those allied to Israel, is another opportunity for contrition and reform, for careful, deliberate thought. It is an opportunity for making an international, interdependent, intercultural order through which a better world might be envisaged and the mess inherited for today, from decisions made about state borders and refugee populations in the past, might be reimagined.

It’s not 1945 anymore, nor is it 1989. It’s 2024 and the world has changed again.