In his opening speech at the Nuremberg tribunal after the Second World War, the American judge, Robert Jackson, famously promised: “The ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this is first applied against German aggressors, the law includes, and if it is to serve a useful purpose, it must condemn aggression by other nations, including those which sit here now in judgment.”

After 79 years, that promise has been realised. For the first time, an international criminal tribunal is likely to charge a head of state supported by the West.

What are the charges?

On May 20, 2024, the prosecutor for the International Criminal Court, Karim Khan, announced he had applied for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant as well as Hamas leaders Ismail Haniyeh, Yahya Sinwar, and Mohammed Deif.

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The charges against Hamas leaders include hostage-taking, rape and sexual violence against hostages in captivity, torture, cruel treatment, and extermination. The charges against Netanyahu and Gallant include starving civilians as a method of warfare, deliberate targeting of civilians, persecution, cruel treatment, and extermination.

While arrest warrants were expected, they weren’t expected for such a huge range of offences on both sides. When the arrest warrant for President Vladimir Putin was issued after Russia’s invasion of Ukraine, the only charge was that of the unlawful deportation of children out of Ukraine — a crime to which he had effectively confessed in an interview on state television. It may be that in adopting a broader range of charges, the prosecutor is hoping that more will stick when it comes to confirming these charges or potentially at trial.

In the current case, the charges are for war crimes and crimes against humanity but notably not for genocide. This may have a knock-on effect on South Africa’s pursuit of state responsibility for Israel at the International Court of Justice. When the ICJ found that a genocide had been committed in Srebrenica, it had relied on the findings of the International Criminal Tribunal for the former Yugoslavia which had found individuals accountable for the crime of genocide. As of yet, the ICJ will have no similar recourse when deciding its case.

The ICC prosecutor seems to have evaded the genocide charge by including that of ‘extermination’ — mass killings in the course of a widespread or systematic attack against a civilian population resulting from a state or organisational policy. This is perhaps the popular understanding of what genocide is, without the need to meet the high threshold of the actual crime of genocide — that of proving intent to destroy Palestinians as a group.

What will happen now?

The prosecutor will now submit his application to a pre-trial chamber, which will decide whether to confirm the charges and then the charges will proceed to a trial if the accused is submitted to the Court. Trials cannot be conducted at the ICC without the accused present. While the permanent five members of the Security Council (including America) can defer a case before the Court for a year at a time, a deferral would need nine affirmative votes and no veto which might be unlikely.

While Hamas leaders can be handed over to the Court, especially Haniye who is based in Qatar, an important issue when it comes to Netanyahu (as a sitting head of state) would be whether he has immunity. This question also arose when the former president of Sudan Omar Al-Bashir and Putin had arrest warrants by the ICC issued against them.

Because the ICC does not have its own police force, it relies on national jurisdictions to enforce its arrest warrants. The Court has held in the past that all 124 member states to its statute — this doesn’t include Pakistan which does not accept the Court’s jurisdiction — are legally obligated to enforce the Court’s warrants and arrest whoever has a warrant issued against them who travels to their countries.

Most states have ignored such requests. Famously, Al-Bashir traveled to over 22 states, and was not arrested by any of them. Currently, 17 individuals subject to arrest warrants remain at large. I believed that both Bashir and Putin had immunity to criminal jurisdiction and I also believe the same for Netanyahu. He is immune to prosecution owing to his position as a sitting head of state and he should not be arrested.

However, my consistent position may not be met by quite such a consistent one in Western states. US President Joe Biden had said that the arrest warrant against Putin was ‘justified’ but his Secretary of State, Antony Blinken, has denounced the one against Netanyahu as ‘shameful’. The European Union meanwhile chastised African states for not arresting Bashir.

It will be interesting to see how these states react to arrest warrants against Netanyahu now, especially Germany, which had said the arrest warrant against Putin showed that “nobody is above the law” and had supported the arrest warrant against Bashir, urging Sudan to react to it in a “sober way”. A summer holiday in Munich should be off the table then for Netanyahu.

Does criminal justice work?

After World War II, when trying to decide what to do with the defeated Nazis, Stalin suggested they should all be killed. Churchill agreed and said they should all be shot. It was Roosevelt, however, who disagreed and persuaded them that trials should be conducted by an international court. Justice Robert Jackson remarked (quite beautifully) “that four great nations, flushed with victory and stung with injury, stayed the hand of vengeance, and voluntarily submitted their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason”.

International criminal law, as we now know it, was born with the Nuremberg trials.

But one of the key reasons that led Nuremberg to be considered a success was the notion that the trials had ‘discredited Nazi leaders and helped the German people quickly transition into a Western bulwark’. But we now know that they did no such thing. Opinion polls taken in Germany every year between 1946-1958 asked the Germans two questions: Do you think Hermann Göring and the other Nazis were guilty? Do you think Hermann Göring and the other Nazis got a fair trial? Every year for 10 years, 85-90 per cent of Germans answered no to both questions.

These polls were classified as secret for 50 years, as they showed that the tribunal had not succeeded in its function of educating people as to what had actually happened during the war. Hermann Göring essentially got the better of Chief Prosecutor Robert Jackson; he used the proceedings and the fact that they were broadcast on radio as a way to repropagandise the Nazi story to the Germans. The President of Serbia, Slobodan Milošević, was to later copy Göring and used the criminal proceedings against him at an international court to rehabilitate himself, eventually running for and winning elections from the courtroom. He didn’t even have to campaign.

I am a bit skeptical about whether criminal justice can achieve the lofty aims we put on it; that it will deter and incapacitate criminals, that it should deliver lasting peace, and that it should serve as a moral denunciation for what we find unacceptable. Some argue that indicted leaders are more inclined to cling on to power if they face trial at The Hague and that even the most unpopular ones can turn around their torpedoing ratings because the threat of international censure creates a rally around the flag effect.

But perhaps the real point of this pursuit of justice is not in what we achieve, but as something for the historical record, for future generations to look back on. That we met power with reason. That when atrocities were being committed, we tried to do something.