Hypocrisy of ICC exposes myth of international accountability

Many in the international community, including members of the South African government, celebrated last week when the International Criminal Court (ICC) issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The International Development and Affairs Department (the Department of International Relations and Cooperation) issued a statement saying that the move marked a “significant step towards justice” and demonstrated a “commitment to international law”, and called on the “global community to uphold the rule of law and ensure accountability”.

Far from representing the ideals expressed in these hollow platitudes, the ICC’s actions actually serve as yet another example of rank hypocrisy plaguing international institutions and promoted by BRICS countries.

For instance, the United Nations General Assembly (UNGA), numerically controlled by the Organisation for Islamic Cooperation and BRICS (a forum including Brazil, China, Egypt, Ethiopia, India, Iran, Russian Federation, South Africa, United Arab Emirates) has yet to issue condemnation of the 7 October massacre in southern Israel. Iran, Qatar, and Turkey’s sponsorship of Hamas, the terrorist organisation primarily responsible for the atrocities, has been similarly ignored. Instead, UNGA has sought to attack Israel routinely and solely, while rewarding Palestinian mass murderers with upgraded UN status.

Similarly, South Africa filed a fake and mysteriously financed case at the UN’s International Court of Justice, falsely accusing Israel of genocide. The government took no action to hold the Palestinians or Iran accountable for organising the actual genocidal attack on Israelis on 7 October. Nor did it seek to enforce the rule of law against Turkey or Qatar for their ongoing harbouring and financing of the killers. Instead, South Africa embraced these governments and hosted leaders of Hamas.

And at the BRICS meeting last month in Russia, South Africa joined Brazil, China, and other hypocritical governments in feting ICC indicted-war criminal Vladimir Putin.

Supposedly insulated from these politicised shenanigans, the ICC was established in 1998 to act as an independent court of last resort in countries without functioning judicial systems. Membership was opened to recognised states with defined territory possessing the jurisdiction that could be transferred to the court. Member states were also expected to co-operate with the ICC.

In practice, however, the court and its member states have flouted these requirements. The ICC has proven itself to be a political tool susceptible to corruption and exploitation, as are most other international bodies.

First, the prosecutor and later the pre-trial chamber, ignored the very clear rules of the court’s foundational Rome Statute and decided they would simply re-write the rules of the treaty in order to target Israelis. Israel isn’t a member of the court, the Palestinian Authority (PA) isn’t a state and has no defined territory, and under the terms of the Oslo Accords, the PA has no ability to transfer jurisdiction over Israelis to the ICC.

Second, ICC Prosecutor Karim Khan deliberately slow-walked seeking arrest warrants against members of Hamas, even though he could have filed against them beginning on 8 October. He chose instead to wait until he could manufacture charges against Israelis. Furthermore, in an unprecedented step, he announced the move on CNN with anti-Israel host Christiane Amanpour, knowing full well all the attention would be on Israel and no-one would focus on Hamas’s crimes. His surprise appearance occurred just as his team was supposed to fly to Israel to discuss how the country was handling investigations of potential wrong-doing during the war in Gaza. The ICC staffers thumbed their nose at their obligations under the Rome Statute, and didn’t board the plane.

This unethical act followed a friendly meeting a few weeks prior between Khan and Nicolás Maduro, the Venezuelan dictator. Rather than threatening Maduro with arrest warrants from the court, he signed a co-operation agreement with him. We later learned that Khan’s sister-in-law is on Maduro’s defence team.

We also recently discovered that, at the same time that Khan decided to go after Israel, he was dodging accusations of sexual misconduct against a female colleague. What better way to deflect from these serious allegations than to go after Israel.

Moreover, accountability for the situation in Gaza was hardly the driving force for Khan’s actions. If so, he would have also moved for arrest warrants against Iran for financing, supplying weaponry, and training Hamas for 7 October. He would have wanted to end the impunity for UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East) teachers who have indoctrinated generations of Palestinian children to antisemitic hate and violence. He would have gone after UN officials and nongovernmental organisations for allowing Hamas to steal humanitarian aid and use their facilities to launch thousands of rocket attacks on Israeli cities – each one a war crime.

These acts are responsible for the crisis in Gaza, but instead, he chose to blame Israel, which facilitated the transfer of billions of pounds of food, water, and shelter equipment to Palestinians. Far from “starving” Gazans, Israel has done more than any other country in history to provide for an enemy’s population, even while engaged in a vicious war and while 250 of its citizens were held hostage in the territory.

ICC member states have been no better during this farce. Apparently, South Africa’s obligation to co-operate with the ICC and its supposed “commitment” to international law had little meaning as its officials were dining with Putin in October.

Unfortunately, the idea that there can be international institutions upholding lofty principles and existing above politics is a fantasy. South Africa and its allies have made sure of it.

• Anne Herzberg is the legal advisor of NGO Monitor, a Jerusalem-based research institute.