Trump, Israel, Hamas: Are Courts the Answer?

Unless the US and other countries are prepared to accept the decisions of courts across the board and not just when the decisions please them, or conform to their preconceive notions, courts will never be the answer

By Anil Madan

On May 29, 2024, a judge in New York instructed the jury on the law applicable to the criminal charges against former President Donald Trump. The jury started their deliberations and in the first three hours requested that they be given a copy of the testimony on certain subjects as well as a re-reading of the judge’s charge on certain points of law.

“The ICJ is making a political decision regarding the conduct of a war. Whereas one might plausibly argue that the court is effectively issuing an injunction against the commission of further war crimes or crimes against humanity, or even preventing genocide, there is a serious jurisdictional question as to whether it is the proper function of a court to direct the conduct of a war…” Pic – Balkan  Insight

Whether Trump is found guilty or not, a sizable percentage of the American electorate has stated in a recent poll that it will make no difference in the likelihood of their voting for him. On the other hand, a significant number of registered voters said a verdict, one way or the other, would make it less likely that they will vote for him.

Such abstract polls do not provide the only answer that matters, the one that counts the total votes cast to determine who will be the next president. Yet, it is remarkable that those claiming to be registered voters can express such disdain for the legal process.

When it comes to disdain for judges and prosecutors, there is not much that can match Trump’s discouraging and scathing remarks. He has referred to them as corrupt, deranged, and engaged in witch hunts and in interfering with his reelection bid.

Even if Trump is convicted, it is unlikely that he will be jailed. The logistics of accommodating the Secret Service which is required by law to provide a former president 360º protection in a prison environment are daunting. The option of home confinement, whether in his New York apartment or at Mar-a-Lago in Florida may be the only options for confinement that a judge would consider. And a lesser sentence of parole or perhaps just a fine are options.

In April this year, twelve Republican US Senators sent Karim Khan, of the International Criminal Court (ICC), a stern letter threatening him and other UN jurists with personal consequences should the ICC apply for arrest warrants for Israeli Prime Minister Netanyahu or other Israeli government ministers or officials. The letter stated that the Senators would view any arrest warrant as “a threat not only to Israel’s sovereignty, but also to the sovereignty of the United States.”

A month later, on the advice of a panel of ICC experts, Khan applied for warrants for the arrest of Netanyahu, Israeli defense minister Yoav Gallant, and as well of Hamas leaders Ismail Haniyeh, Mohammed al-Masri, and Yahya Sinwar. 

The ICC’s controversial warrants

Trumping the level of disdain for prosecutors shown by the former US president, Israel’s Prime Minister Netanyahu called Khan one of the “great antisemites in modern times.” Notwithstanding that Israel is not a member of the ICC, Israeli government condemnation of Khan and the ICC was swift and strident. Netanyahu said he rejected with disgust that “democratic Israel” had been compared with “mass murderers”. Gallant called the ICC’s action a disgraceful attempt to interfere in the war.

Not surprisingly, Hamas issued its own denunciation of the ICC’s action, saying that it was equating the victim with the executioner.

The US is also not a member of the ICC. Nevertheless, President Biden called the application “outrageous” and stated that there is no equivalence between Israel and Hamas. US Secretary of State Blinken called the move shameful and declared that the ICC has no jurisdiction in this matter.

House of Representatives Speaker Mike Johnson called the idea of such warrants “disgraceful” and demanded that the Biden Administration must immediately and unequivocally demand that the ICC stand down and the US should use every available tool to prevent such an abomination.

Meanwhile, it appears that many countries including Spain, Ireland, France, Germany, Denmark, and Norway, are prepared to honour the ICC warrants. In what many have fairly called hypocrisy, when the ICC issued an arrest warrant for Putin on charges of committing war crimes, Biden said Putin had “clearly committed war crimes,” and called the arrest warrant justified. Blinken urged all ICC member states to enforce the warrant.

Whereas British Prime Minister Rishi Sunak’s spokesperson denounced an arrest warrant as not helpful in stopping the conflict, rescuing hostages, or delivering humanitarian aid, when the Putin arrest warrant was announced, then-Foreign Secretary Cleverly welcomed the ICC’s independent action in that regard.

Karim Khan is a prosecutor with a distinguished career in international criminal law. He is a barrister called to the Bar at Lincoln’s Inn and King’s Counsel. His more than 30 years of professional experience as an international criminal law and human rights lawyer includes being a prosecutor, victim’s counsel and defense lawyer in the International Criminal Court, International Criminal Tribunal for Rwanda, International Tribunal for the Former Yugoslavia, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, and the Special Court for Sierra Leone.

Nevertheless, it must be said that Khan was pandering to supporters of both Israel and Hamas when he announced his simultaneous application for arrest warrants. For supporters of Israel, the warrants for Hamas leaders are fully justified. In fact, the leaders of many countries that support the ICC condemned the equivalence Khan’s actions had made between Israel and Hamas. On the other hand, supporters of the Palestinians, decried equating the victims with Israel which they see as an illegal occupier. Those are not issues I intend to address here; my purpose being directed to the disdain that courts of law and the legal process are seen at the highest levels in governments across the world.

War crimes tribunals

It should be noted that the US was instrumental in establishing the war crimes tribunals in Nuremberg and Tokyo after World War II and, as Todd Buchwald has noted, “the United States was the prime advocate in the Security Council debates that produced the Yugoslavia and Rwanda tribunals that stand as forefathers to the International Criminal Court and was in fact an early supporter of a permanent international criminal tribunal. And notwithstanding its concerns about the Court, the United States played a significant role in shaping the ICC’s Elements of Crimes and its Rules of Procedure and Evidence as well as in helping in its investigations.”

On another note, in South Africa’s genocide case against Israel before the International Court of Justice (ICJ), that court issued an Order in January this year, directing Israel to take all measures to prevent any acts that could be considered genocidal according to the 1948 Genocide Convention.

On the same day as Khan’s announcement that he would seek the arrest warrants mentioned, the ICJ issued an order that Israel must immediately halt all military operations in the governorate of Rafah and that any further operations could be considered an act of genocide.

It is notable that neither the ICC nor the ICJ, has charged Hamas or its leaders with attempted genocide against Israel.

The ICJ order has prompted rights groups to call on the Biden administration to cease weapons transfers to Israel. Biden himself has voiced public opposition to a ground invasion of Rafah, but his administration appears to be backing away from that apparent red line which now appears pink. Indeed, when an Israeli airstrike was alleged to have caused the death of 45 civilians including women and children, White House spokesperson said that this did not cross an US red line. Netanyahu called the deaths a tragic mistake, but an Israeli spokesperson referred to the need for an investigation and appeared to cast doubt that the Israeli airstrike was the cause of the fire that followed.

Israeli condemnation of the ICJ’s order was swift and not limited to just Netanyahu’s coalition. National Security Minister Itamar Ben-Gvir described the order as “antisemitic.” He declared that Israel’s response to the ruling “should be a single answer: the occupation of Rafah, increased military pressure, and the complete defeat of Hamas until full victory is achieved.” Finance Minister Bezalel Smotrich said the government could not accept the court’s order, adding that Israel is “at war for its existence,” and “those who demand that it should stop the war, demand that it decrees itself to cease to exist.” Former Defense Minister Avigdor Lieberman, criticized the Israeli government’s decision to appear before the court as “a serious mistake.”

He added: “The court’s decision from today proves that various UN institutions and also the criminal court in The Hague have become aides to terrorists all over the world and their entire role is to deter democratic countries.” Opposition leader Yair Lapid also decried the order. “The fact that the court did not make a connection in its ruling between the cessation of fighting in Rafah and the return of the abductees and Israel’s right to defend itself against terrorism is a moral collapse,” he wrote.

A serious jurisdictional question

One must pause to note the distinction between the actions at the ICC and the ICJ. The first is directing the arrest of individuals to answer to charges of crimes against humanity or against the laws of war. This is a proper function of a court, to adjudicate guilt or innocence for defined crimes. The notion of due process requires that a person charged be given fair notice or and understand the charges against him.

The ICJ, on the other hand, is making a political decision regarding the conduct of a war. Whereas one might plausibly argue that the court is effectively issuing an injunction against the commission of further war crimes or crimes against humanity, or even preventing genocide, there is a serious jurisdictional question as to whether it is the proper function of a court to direct the conduct of a war. Might such a court authorize Hamas to conduct a retaliatory strike within Israel?

When the courts at Nuremberg and Tokyo were established, the ideas of universal jurisdiction and of crimes against humanity were relatively new. Today, we take them for granted. Might it come to pass that we will view orders such as the one issued by the ICJ as routine and warranted? Will we need to establish standards regarding how and when military operations may be conducted?

Is a court such as the ICJ the right forum to decide such matters? And if not the ICJ, what tribunal might be effective in this regard?

More importantly, unless the US and other countries are prepared to accept the decisions of courts across the board and not just when the decisions please them, or conform to their preconceive notions, courts will never be the answer.

Cheerz…

Bwana

Mauritius Times ePaper Friday 31 May 2024