International Criminal Court building in The Hague, Netherlands.
International Criminal Court building in The Hague, Netherlands. © United Nations Photo/Creative Commons

“International Justice is the Servant of the World”

Leading justice expert explains why potential indictments over Gaza war could be a game-changer.

Friday, 24 May, 2024

The International Criminal Court (ICC) has taken the momentous decision to seek arrest warrants against both the Israeli and Hamas leadership. Sir Geoffrey Nice QC - the British barrister and lead prosecutor of Bosnian Serb leader Slobodan Milosevic at the International Criminal Tribunal for the Former Yugoslavia – told IWPR Managing Editor Daniella Peled that this marked a fresh approach in efforts to bring accountability.

What are the wider implications for international justice of the request to issue arrest warrants against Israeli and Hamas leaders?

Sir Geoffrey Nice: When international war crimes tribunals started in earnest in the 90s with Rwanda, Yugoslavia, Cambodia and so on, it was a bit of a novelty. People weren't necessarily expecting to be able to see wrongdoers in war being tried.

Slowly, over the intervening 30 years, it's become much more accepted - and then expected - that this will happen. What the ICC prosecutor has done is in line probably with public expectation, and that's a good thing.

International justice is not the servant of the West or the global South, or any other part of the globe. It's supposed to be the servant of the citizens of the world. We should not get overexcited about the fact that two of these arrest warrants are sought against a close Western ally.

Sir Geoffrey Nice QC is a British barrister and judge. He took part in the International Criminal Tribunal for the Former Yugoslavia and was lead prosecutor at Slobodan Milošević's trial. © Jamesfranklingresham/Wikimedia

But the importance of the present approach by the prosecutor is demonstrated by the willingness to take action in respect of Israel now, despite the fact that America and Great Britain oppose it.

The ICC has had opportunities to deal with alleged wrongdoing by the IDF on at least two occasions. First of all, following the attack on the humanitarian flotilla [to Gaza] led by the Mavi Marmara ship in 2010, efforts were made to get that matter before the ICC, but it moved at immensely slow speed and eventually decided against taking the case.

Then in 2014, Operation Protective Edge was what some observers think of as “mowing the grass” - said to be the underlying Israeli policy whereby you have regular conflicts with Gaza in order to keep it under control.

After Protective Edge in December 2014, I interviewed Hamas leader Ismail Haniya and he was enthusiastic about the ICC investigating. In 2015, the same expressions of interest were made by other Hamas leaders and the Palestinian Authority granted jurisdiction to the ICC to cover not just the West Bank, but to cover Gaza as well. So from 2015, the ICC was in a position to consider very serious possible wrongdoings - but years passed and almost nothing was done. You can hardly blame either side, Israel or Hamas, for thinking the ICC wasn't going to react.

Who knows if the court had shown itself willing to be robust against Israel, against Hamas, whether things would have been different.

What do you see as the potential impact of these cases?

Effective international justice processes can do something by way of bringing resolution or solace or to victims and bereaved, and by leaving records of criminality. But they don't necessarily achieve much unless they can deter the next offender.

The basic issue is, can the processes of international justice have any effect, not just on present conflicts, but on future ones? The answer to that is that there is very little evidence that prosecuting people, whether Nuremberg or in Arusha for Rwanda or in The Hague for the former Yugoslavia, will stop the next monster doing what he or she might want to do.

But just in case it does, it's very important and potentially of great value. Maybe the action taken at the ICC might have some effect on [President] XI Jinping in the People's Republic of China, if and when he starts thinking of Taiwan as falling within his military grip, might he fear the outside possibility of being detained and sent to prison?

That's the general argument people raise, but we don't know to what extent Putin gave any thought to the consequences for other smaller country’s leaders having been detained, tried and arrested, such as Milosevic or [jailed Liberian leader] Charles Taylor or [convicted Khmer Rouge official] Duch in Cambodia. He may have given it no thought at all, or he may have assessed that he would never personally be exposed to the risk of being tried.

The ICC seemed to fade somewhat in relevance after the collapse of the case against Kenyan president Uhuru Kenyatta in 2014. Have Ukraine and other current justice processes revitalised it?

I hope so. The Russia-Ukraine war has alerted the general public to the business of proportionality and to how criminality in war is defined and dealt with. That rising interest and knowledge has been added to by everything that's happened in Israel and Gaza.

I rather doubt if the majority of the world's citizens got that excited by events in Kenya and the eventual ending of the cases there, or the case against Omar Bashir of Sudan, which also failed.

Russia-Ukraine is different. And people now realize that the false peace of the Cold War was really a “cold peace” and we didn't do enough to recognise the risks that would be coming our way.

The US and UK government have argued that the ICC’s moves could serve to prolong the war. Is this a fair point, or can war crimes charges facilitate an end to conflict?

There is certainly a big question over whether international criminal accountability processes should start before the conflict ends or only after the fighting stops.

It's been said of some of the African cases where one side says to the ICC that war crimes are being committed by the other and offers to assist their investigations. Then you could almost argue that the ICC becomes an active participant in the conflict because one side succeeded in getting it involved.

In the Yugoslav case, the tribunal was created in 1993. Mladic and Karadzic were under investigation and warrants had already been issued for them well before 1995, the worst part of the Yugoslav wars.

So do you start it in the middle or do you wait until it's all over?

If you're a policeman and you’re called to a house where a man's beating up his wife, but he hasn't finished and he hasn't yet killed her. Do you wait to see what he does and then decide if it's assault or murder or manslaughter?

I think you should probably not disregard the views of ordinary people, and if you were to ask them, my guess is most would say get stuck in right now.

Three more countries – Ireland, Spain and Norway - formally recognised Palestine as a state this week. What effect is this likely to have on ongoing justice processes?

I think it will have some effect.

I think recognition of Palestinian statehood is a recognition of global failings in respect of, a problem that was bound to develop from an action that was well intentioned and perhaps the right action at the time. But it was always going to be extremely difficult and dangerous.

The powerful states allowed this issue to bubble away and not be dealt with. Now all they can do is recognize Palestine.

Whether that's going to affect the outcome in terms of the work of the ICC, I don't know, but what I think it is going to do, and probably reasonably soon, is to make it very difficult for the remaining big countries opposing Palestinian statehood to maintain that position.

You can be an outlier. You can be a strong country that's an outlier. But eventually you will find you have to fall in line. And given the amount of support there appears to be for Palestinians in Great Britain and in America, I'm not sure how much longer that leaders will be able to hold out against those conditions.

How do you think the US could respond to the ICC decision?

The US is likely, I think, to stick with its rhetoric because of its commitment to being pro-Israel - not specifically so far as the military operation in Rafah is concerned, but in general it remains entirely supportive of Israel. This cannot change for all sorts of internal reasons, but I wonder if we are going to see any moral lead of America diminishing in its effect around the world. That may be one of the consequences of it being out of step on this issue, which I think it probably is.

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