Dr Afzal Ashraf, International Security Specialist, UK
About the author: Afzal Ashraf has practitioner experience as a senior officer in the UK Armed Forces and in the Foreign and Commonwealth Office. He has a PhD from St Andrews University in International Relations. He is currently teaching International Relations and Security at Loughborough University.
The conflict in Gaza appears to be the most asymmetric conflict in the recent history of warfare. It is a war between a state with an army and powerful international backing against a non-state people without an army and without powerful international backers. Given this situation, moves for a peaceful outcome in Gaza are being spearheaded by poor and weak countries who look to the International Court of Justice for a solution, at least in principle.
Unusually for its relatively short history, the Chief Prosecutor of the International Criminal Court (ICC) intervened at the outset of the conflict with warnings to all parties of the importance of adhering to humanitarian principles as enshrined in international law, particularly the laws of war. It could be said that this is a war between power and principles.
As the world awaits the possible issue of arrest warrants for those involved in this horrendous conflict, it is worth looking at the factors that led to the establishment of the ICC and considering the likely outcomes of any actions it takes. By doing so a fascinating link emerges between modernity, power, war and inhumanity of leadership on the one side and the innate humanity, shared values and empathy of ordinary people on the other. At the heart of these issues are two of the mission aims of the Promised Reformeras of the age: to reconnect man with God and to put an end to war. (Lecture Lahore, p. 42; Sahih al-Bukhari, Hadith 3448)
Background to the ICC
The International Criminal Court (ICC) was established as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. It was established by the Rome Statute, which entered into force on 1 July 2002 in The Hague, Netherlands. The roots of the ideas of an ICC go back to the aftermath of World War I with calls for an international justice mechanism. The Treaty of Versailles in 1919 proposed the establishment of a special tribunal to try the German Emperor Wilhelm II for “a supreme offence against international morality and the sanctity of treaties.” This proposal failed due to a lack of international consensus based on the political beliefs of the time which created difficulties for establishing an international court in a world dominated by notions of absolute sovereignty and the traditional rights of states. (Bassiouni, M. Cherif, “A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal,” Revue Internationale de Droit Pénal 58, no. 3-4 (1987): 355-533)
These ideas of power relate to what political philosophers call realism, the belief that the world is in a “state of nature” and, like the jungle, nations must maximise their power to survive. (Articulated by Thomas Hobbs as being characterised by the “‘war of every man against every man,’ a constant and violent condition of competition in which each individual has a natural right to everything, regardless of the interests of others.” See Munro, André, “State of Nature”. Encyclopedia Britannica, 28 Mar. 2024, www.britannica.com/topic/state-of-nature-political-theory, Accessed 29 April 2024.) A world in which power is paramount and war is inevitable. However, modern warfare was proving to be destructive and costly and so a mechanism had to be found to mitigate the likelihood of war.
The League of Nations was one of the international institutions designed to increase the chances of peace and reduce the likelihood of war. It was the first of what are called liberal institutions where collective principles are supposedly given prominence over individual power interests. However, the League failed because realist power interests were in actuality given prominence over equality of justice.
The horrors of World War II marked a significant advancement in the pursuit of international justice with the establishment of the Nuremberg and Tokyo Tribunals to prosecute Axis war criminals. These tribunals helped establish precedents in international law, such as the definitions of genocide, crimes against humanity, and war crimes. The Nuremberg Trials were heralded for their procedural fairness and emphasis on individual accountability, principles which deeply influenced the later structure of the ICC. However, these tribunals were also criticised for their victor’s justice approach, whereby only the defeated nations were prosecuted. (Taylor, Telford, The Anatomy of the Nuremberg Trials: A Personal Memoir, Knopf Doubleday Publishing Group, 1992)
The Nuremberg and Tokyo Tribunals initially generated momentum for a permanent international criminal court, but the onset of the Cold War stymied these efforts. It was not until the 1990s, with the end of the Cold War and the genocides in Rwanda and the former Yugoslavia, that the international community seriously revisited the idea. The ad hoc tribunals established for these latter conflicts demonstrated the need for a standing body to address such crimes continuously rather than on a case-by-case basis. This led to the adoption of the Rome Statute in 1998, establishing the ICC. (Schabas, William A, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010)
Since its formation, political debate has often centred around concerns of national sovereignty and the potential for misuse of power by the ICC against national interests, particularly among major powers like the U.S., China, and Russia. (Schiff, Benjamin N, Building the International Criminal Court, Cambridge University Press, 2008)
Ethically, the argument for the ICC was framed around the need for justice for victims of grave crimes, where local systems may fail. Advocates for the court argued that it would serve as a deterrent against future atrocities. Critics, however, worried about the potential for political manipulation and the implications for national judicial autonomy. (Bosco, David, Rough Justice: The International Criminal Court in a World of Power Politics, Oxford University Press, 2014)
Consequently, the establishment of the ICC involved extensive legal deliberations over its jurisdiction and the principle of complementarity, which ensures that the ICC acts only when national jurisdictions are unable or unwilling to prosecute. The legal framework had to carefully define the scope of crimes like genocide, war crimes, and crimes against humanity, with the crime of aggression being particularly contentious. (Akhavan, Payam, The International Criminal Court in Context: Politics and the Struggle for Justice, Harvard International Law Journal, 2009)
At a fundamental level, the ICC, along with other liberal international institutions, is a response to the horrors of realism and its inevitable wars. The UN represents a more cooperative approach than the failed League of Nations, which it replaced, but it too is dominated by power interests through the UN Security Council and the exercise of the veto. Apart from using the UN, the ICC and other international organisations to support and supplement their power interests, major powers need these institutions to give credibility to their policies, especially those associated with conflict and war. This is especially true of Western liberal democracies whose internal policies are based on liberal principles of equality under the law. For example, the US Constitution declares that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The roots of these principles of equality, rights and obligations are explained in Sir Zafarulla Khan’sra 1967 book on Islam and the International Declaration of Human Rights. It asserts that the compatibility of the Declaration and Islam reflects the belief that all religions derive from the same Divine source. Similarly, the capacity for human philosophical reasoning is also viewed as an innate, divinely inspired quality. Consequently, religious teachings and non-religious philosophical reasoning converge on common basic moral principles which most humans hold to be self-evident truths.
Western leaders have, therefore, to present their self-interest power policies in terms of legally legitimate purposes and to delegitimise their opponents as acting in the interest of power outside the ‘rules-based order’ or the law. This is precisely what the German Chancellor, Olaf Shultz, did on 27 February 2022, following the Russian invasion of Ukraine. He said:
“We are living through a watershed era. And that means that the world afterwards will no longer be the same as the world before. The issue at the heart of this is whether power is allowed to prevail over the law.” (“Germany to meet 2% NATO spending threshold next year, Scholz announces”, www.euronews.com)
The close proximity of the Ukraine and Gaza wars has presented Western powers with narrative manipulation challenges that have exposed what many refer to as double standards. These emerge most significantly in how politicians frame the laws of war differently in both conflicts because of their different power interests in each conflict. Their narratives often clash with public perceptions, particularly of the idealist younger generations, which are driven by their innate beliefs in equality.
ICC’s performance
The ICC aims to ensure that grave international crimes do not go unpunished and to promote international justice and the rule of law, with objectives to deter future war crimes, crimes against humanity and genocide by holding leaders accountable and to provide justice to victims. The ICC’s success is perceived differently by various stakeholders. It has been praised for bringing several high-profile perpetrators to justice and for promoting international legal norms. However, it has also faced criticism for its limited number of convictions, long trial durations and for being disproportionately focused on African states.
For example, Thomas Lubanga, of the Democratic Republic of Congo, was the first person convicted by the ICC in 2012. He was found guilty of conscripting and enlisting children and using them to participate in hostilities. This case was seen as a success and set a precedent for addressing grave violations against children in conflict zones. Other African cases have not been so successful. Significant challenges were faced in prosecuting Kenyan officials accused of inciting post-election violence in 2007-2008. Cases against Uhuru Kenyatta, William Ruto, and others eventually collapsed due to a lack of evidence and alleged witness tampering, highlighting issues of political interference and the difficulty in securing reliable witness testimony. (Clark, Phil, Distant Justice: The Impact of the International Criminal Court on African Politics, Cambridge University Press, 2018)
Omar al-Bashir, the former President of Sudan, was indicted for crimes against humanity, war crimes, and genocide in Darfur. Significantly, he was the first sitting president to be issued an arrest warrant by the ICC. However, enforcement of the arrest warrant has been unsuccessful, demonstrating the challenges the ICC faces in exerting its authority over non-cooperative member states. (Kersten, Mark, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, Oxford University Press, 2016)
Cases involving non-African states are beginning to emerge. The ICC authorised an initial investigation into alleged crimes committed during the 2008 Russo-Georgian War shortly after the war. That initial investigation found sufficient evidence in 2016 to trigger a full investigation into allegations including attacks against civilian populations, murder, forcible transfer of population and persecution. These allegations encompassed all sides of the conflict implicating Georgian, South Ossetian and Russian forces. In June 2022, the ICC issued arrest warrants for three South Ossetian officials who were charged with multiple war crimes, including unlawful confinement, torture, and the forcible transfer of ethnic Georgian civilians. This case further illustrates both the reactive nature of the ICC and the length of time it can take between a crime and trial, let alone conviction.
Success, failure and limitations of prosecutions
The Lubanga case is a prime example where the ICC effectively used its mandate to address grave injustices. However, the ICC’s failures are typically marked by insufficient availability of evidence, witness tampering and lack of cooperation from local governments, as seen in the Kenyan cases and the ongoing challenges with arresting Omar al-Bashir.
Overall, the ICC’s effectiveness is influenced by the international community’s political will to support its mandates and the cooperation of states where the ICC seeks to operate. The mixed outcomes of its cases reflect the complex interplay between international law, state sovereignty, and global politics. These issues are particularly significant because the ICC lacks its own police force to arrest suspects, relying instead on member states to enforce its arrest warrants, which can be problematic if states are unwilling or unable to comply.
In practice, the Court is proving less limited by its jurisdiction. This is limited to crimes committed on the territory of a state party to the Rome Statute or by its nationals unless a situation is referred by the UN Security Council. Although, some major countries, including the United States, China, and Russia, are not party to the Rome Statute, on 17 March 2023 the ICC issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, the Commissioner for Children’s Rights in the President’s office. The charges include the unlawful deportation of children and the unlawful transfer of population from occupied areas of Ukraine to the Russian Federation. These acts are alleged to constitute war crimes under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute. The warrants mark a significant step as President Putin is one of the highest-ranking officials and the first leader of a permanent member of the U.N. Security Council to be indicted by the ICC for such crimes. It is unknown to what extent, if any, Western states were involved in influencing the ICC’s decision to investigate and issue warrants for Russian officials. It is certain that they were involved in facilitating the investigation which was partly conducted on Ukrainian territory during the war.
ICC and the current conflict
Another evolution in the ICC’s modus operandi emerged at the start of the war in Gaza. The office of the Chief Prosecutor, Karim Khan, issued several public statements calling on all sides for restraint and compliance with internal laws. This appears to be the first occasion when the ICC has proactively moved to avoid legal violations in a conflict rather than reactively after crimes have been committed. However, this move, which came after the atrocities committed by Hamas and others on 7 October 2023, appears to have had no effect on reducing human suffering. Instead, it has been suggested by some observers that the early interventions by the office of the Chief Prosecutor may have inadvertently raised public expectations. This heightened anticipation appears to have led to some disappointment and even criticism regarding the effectiveness of the office’s approach.
In recent days, reports suggest that the ICC will issue warrants against Israeli officials (presumably also against Hamas leaders). These reports have been followed by statements from Israeli Prime Minister Netanyahu in Hebrew and English on social media stating, “While decisions made by the court in the Hague will not affect Israel’s actions, they will set a dangerous precedent that threatens soldiers and public figures.” (“Netanyahu says ICC decisions will not affect Israel’s actions, set dangerous precedent”, www.reuters.com) Subsequently, reports suggest that President Biden is involved in diplomatic actions to prevent the issuing of the expected warrants. (“Israel, US said working to prevent ICC arrest warrant against Netanyahu”, www.timesofisrael.com)
Regardless of the accuracy of these claims, two things are evident. Firstly, if no warrants are issued as expected, the ICC will come under severe criticism for buckling under pressure and this will lead to a loss of credibility of both the Court and the office of the Prosecutor.
Secondly, and most significantly, the mere possibility of arrest warrants appears to have had a worrying impact on Israel and its supporters who style themselves as liberal democracies. Their domestic narrative, which justifies their foreign policies often resulting in gross violence and huge amounts of human suffering, is predicated on the belief in moral, ethical and legal superiority. Any prosecution will weaken the already declining public and international support these governments enjoy. It is conceivable that these warrants targeting Israeli and likely Hamas leadership may empower the already vibrant opposition in that country as well as anti-war movements in the USA and Europe and among the Palestinian people leading to a radical change of policy and approach to the Palestine issue. Therefore, the ICC’s greatest and most positive impact may occur in the court of public opinion, long before any ICC trial ever takes place.
Justice and law vs justice and love
While Western Liberal values acknowledge their origins in Judeo-Christian teachings, they are increasingly understood and applied in a secular form. For example, the presumption that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights” is ignored in favour of the phrase that precedes it “We hold these truths to be self-evident.” For the leadership, at least, any situation which threatens their power is perceived as a self-evident existential threat. Such situations, they argue, call for ‘exceptional’ measures which mean the suspension of normal values and laws. For example, ‘American exceptionalism’ is the idea that the United States of America is a unique and even morally superior country for historical, ideological, or religious reasons. (See Encyclopaedia Britannica www.britannica.com/topic/American-exceptionalism) The possession and declared use of nuclear weapons, which intentionally contradict international humanitarian and armed conflict law, is a case in point. Similarly, many believe that a threat to the security of Israel is an existential threat and requires exceptional measures to eradicate it by all means possible.
Chancellor Shultz is right when he says that, “We are living through a watershed era. And that means that the world afterwards will no longer be the same as the world before.” (“Germany to meet 2% NATO spending threshold next year, Scholz announces”, www.euronews.com) The conflict between Realism and Liberalism is a conflict between fear and faith. Shapers of Realist thinking acknowledge that fear is the driving emotion for realists. Thomas Hobbes believed fear drove the creation of social institutions; Machiavelli wrote that it was better for a leader to be ‘feared than loved’ because the ‘dread of punishment’ never fails; and ancient Greek writer, Thucydides wrote ‘prestige, fear, and self-interest’ motivate political decisions. Realism, therefore, promotes a parochial and selfish worldview, which is driven by the fear of temporal loss. These drive a love for self and hatred for the other.
Conversely, scriptures tell us that faith demands an inclusive and self-sacrificial approach motivated by the creative power of love. In the Holy Bible, Micah 6:8, we read:
“He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.” (NIV)
Each Friday, during the Jumu‘ah sermon, Muslims are reminded of the following verse of the Holy Quran, i.e., Surah an-Nahl, chapter 16, verse 91:
اِنَّ اللّٰہَ یَاۡمُرُ بِالۡعَدۡلِ وَالۡاِحۡسَانِ وَاِیۡتَآیِٔ ذِی الۡقُرۡبٰی وَیَنۡہٰی عَنِ الۡفَحۡشَآءِ وَالۡمُنۡکَرِ وَالۡبَغۡیِ ۚ یَعِظُکُمۡ لَعَلَّکُمۡ تَذَکَّرُوۡنَ
“Verily, Allah enjoins justice, and the doing of good to others; and giving like kindred; and forbids indecency, and manifest evil, and wrongful transgression. He admonished you that you may take heed.”
Whatever the world chooses to do, Muslims are obliged to constantly heed God’s commandment to link justice with love, in all of its manifestations from beneficence to unconditional love. Ahmadi Muslims, in particular, have a duty to fulfil the Promised Messiah’sas mission to re-establish the link between man and God and to eradicate war so that justice for all has an opportunity to prevail. We may be limited in our actions to prevent injustice, but we are free to persuade people by explaining a common-good approach to peace and justice through love for all and hatred for none.