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Global Justice on Trial: The ICC’s Challenge in Holding Leaders Accountable

American judge Robert Jackson, in his opening statement at the Nuremberg trials after World War II, said, “The ultimate step in preventing inevitable wars under international law is to make statesmen accountable to the law.” 79 years later, these words have resurfaced, and the prosecution has taken action.

What does the arrest warrant request from the International Criminal Court for the senior leaders of Israel and Hamas mean? On May 20, 2024, the Chief Prosecutor of the International Criminal Court (ICC), Karim Khan, announced that he had requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as Hamas leaders Ismail Haniyeh, Yahya Sinwar, and Mohammed Deif. This marks the first time a state leader supported by the West has been charged.

The charges against the Hamas leaders include hostage-taking, sexual violence, and torture of prisoners. The charges against Netanyahu and Gallant include using starvation of civilians as a method of warfare, intentionally targeting civilians, persecution, cruel treatment, and attempts at extermination.

There had been rumors that arrest warrants would be sought, but the extent of the charges against both sides was unexpected. For example, the only charge in the arrest warrant issued for Putin after Russia’s invasion of Ukraine was the illegal deportation of children from Ukraine. Putin had confessed to this crime on state television, and this confession was included in the file.

The prosecutor’s charges against Israel involve war crimes and crimes against humanity. However, the term “genocide” is not included among these charges. When the ICC ruled that genocide had occurred in Srebrenica, it was based on the findings of the International Criminal Tribunal for the former Yugoslavia. The ICC prefers the charge of “extermination” over proving the charge of “genocide” given the current evidence. Therefore, so far, the ICC will not proceed with a charge of “genocide” during the trials as it does not have such evidence.

The ICC chief prosecutor prefers the charge of “extermination” over “genocide,” adopting a different approach. This preference includes mass slaughters during widespread or systematic attacks against a civilian population as part of a state or organizational policy. This approach allows the prosecutor to overcome the challenges of proving a genocide charge, facilitating a broader pursuit of justice.

This is important both for achieving justice and for maintaining historical records. Thus, the court can address the mass crimes committed against civilians without being hindered by the narrow legal definition of genocide. This is a significant step towards bringing crimes against Palestinians to justice.

The prosecutor will now submit his application to a pre-trial chamber, which will decide whether to confirm the charges. If the court confirms the charges and the defendants are brought to trial, a hearing will be held. However, if the defendants do not appear in court, the ICC cannot conduct a trial. The permanent five members of the Security Council (including the USA) can postpone a case in the ICC for a year, but this requires nine affirmative votes and no vetoes, which is unlikely.

Hamas leader Haniyeh, located in Qatar, could be surrendered to the ICC. However, Netanyahu, who enjoys immunity as a sitting head of state, faces a different situation. The issue of immunity also came up with the arrest warrants issued by the ICC for former Sudanese President Omar al-Bashir and Putin. Since the ICC does not have its own police force, it must rely on the judiciaries of countries to enforce arrest warrants.

The Pursuit of Justice The implementation of international law often reveals double standards, especially when powerful states and leaders are involved. The International Criminal Court (ICC) has previously stated that all member states are obligated to enforce the court’s orders. The court has legally required member countries to comply with arrest warrants issued by the court and to arrest anyone who comes to their country to enforce these orders. However, most states ignore these requests.

A notable example is former Sudanese President Omar al-Bashir. Despite traveling to more than 22 countries, he has not yet been arrested. Currently, 17 people with ICC arrest warrants are still freely traveling.

While US President Joe Biden stated that the arrest warrant against Putin was ‘justified,’ Secretary of State Antony Blinken described the order against Netanyahu as ‘a disgraceful decision.’ The European Union has accused African states of failing to arrest al-Bashir.

It will be interesting to see how Western states respond to the arrest warrants against Netanyahu. Germany recently announced its decision on this matter and declared it would comply with the court’s decision. Germany had assessed the arrest warrant against Putin as “no one is above the law.” Germany also supported the arrest warrant against al-Bashir, urging Sudan to take action. If Germany does not backtrack on its decision, it will not be possible for Netanyahu to hide even in the remotest parts of Germany.

International law, when applied equally between powerful and weak states, can achieve justice. However, today, it is evident that there are double standards in the implementation of the law, casting a shadow over the legitimacy of international law. For justice to be truly established, all states and leaders must be treated equally, and the law must be applied the same way for everyone.

Nuremberg Trials: The Double Face of Justice As is well known, international criminal law was born with the Nuremberg trials. After World War II, world leaders had different statements about what to do with the Nazis. Stalin advocated killing them all, Churchill supported execution by firing squad; Roosevelt convinced other leaders that they should be tried by an international court.

The Nuremberg Trials, which tried Nazi leaders, hold an important place in human history. However, there are deep debates about whether these trials were truly successful. A common view is that the trials discredited Nazi leaders and won over the German people to Western values. However, research and surveys conducted over the years reveal that this view does not reflect the truth.

Surveys conducted in Germany between 1946-1958 asked the public two questions each year: “Do you think Hermann Göring and other Nazi leaders were guilty and were fairly tried?”

The answers to these questions showed that 85-90% of Germans said ‘no’ to both questions. These results indicate that the courts did not fulfill their function of educating and raising awareness among the German public about the events during the war.

Nazi leader Hermann Göring used the trial process for his own propaganda. Göring effectively manipulated the prosecution and managed to revive Nazi ideology by broadcasting the trial process on the radio. A similar situation occurred in the trials of Serbian President Slobodan Milošević. Milošević was tried in international courts but won the elections from the courtroom.

The courts have not achieved their objectives of deterring criminals, neutralizing them, ensuring lasting peace, and moral condemnation. In fact, some leaders continue in office and gain public support despite international condemnation. The best example fitting this description is undoubtedly Turkey’s partisan President Recep Tayyip Erdoğan. Erdoğan’s election victories could be cited as examples, despite open calls and warnings from leaders of democratic states, including the EU. However, the most important aspect of international justice is creating a historical record. These trials are very meaningful in terms of displaying a stance against crimes against humanity and leaving a message for the future.

International trials are significant for humanity. The decisions of the International Criminal Court can be a turning point in the enforcement of international law and justice. However, many legal and political hurdles must be overcome during this process. How these processes will be managed and what their outcomes will be is a contentious issue. It is undeniable that these trials will remain a historical record for future generations and contribute to the advancement of humanity. Combining force with wisdom in opposing crimes against humanity is a sign of progress.

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YUKSEL DURGUT
YUKSEL DURGUT
YÜKSEL DURGUT is a journalist with a primary focus on global politics and foreign affairs. He serves as the Foreign Relations Director of the International Journalists Association e.V. and holds the position of Editor-in-Chief at Journalist Post.
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