Though the drumbeat has been persistent for decades, over the past months, there has been a notable uptick in discussion about international courts and international arrest warrants. The latest round kicked off when, in December 2023, South Africa levelled an accusation against Israel of committing genocide in the Gaza Strip in violation of the 1948 Genocide Convention. As a signatory to that convention, South Africa invoked its “obligation to prevent genocide” as the reason for initiating proceedings in the International Court of Justice.

The ICJ is the only international court that handles disputes between nations. It is one of six organs if the United Nations and based in the Hague. The ICJ, however, is not the ICC.  The ICC, or International Criminal Court, though also based in the Hague, is a separate body. Where the ICJ issues advisory opinions on international legal issues, the ICC has jurisdiction to prosecute individuals for crimes like genocide, crimes against humanity, war crimes and “crimes of aggression.”

On May 20,2024, ICC Prosecutor Karim A.A. Khan requested that the ICC issue an international warrant for the arrests of Yahya Sinwar, the head of Hamas in Gaza, Mohammed Deif, the head of Hamas’ military wing, and Ismail Haniyeh, the head of Hamas’ political bureau.  He also asked for a similar warrant to be issued for the arrest of Israeli Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant.  Since the request was issued, Israel reportedly killed Deif and Haniyeh. ICC judges are still considering the request for the arrest of the remaining individuals. If all three ICC judges agree there are "reasonable grounds" to believe war crimes or crimes against humanity have been committed, they will issue an arrest warrant. The warrant must name the person, the specific crimes for which an arrest is sought and a statement of facts which are alleged to constitute those crimes.

Though the ICC has only been active since 1998, its roots can be found in the Nuremberg (and Tokyo) Tribunals created by the victorious Allies after the Second World War.  Indeed, 78 years ago today, the Nuremberg Tribunal concluded with the execution of ten prominent members of the political and military leadership of Nazi Germany.

Though some have argued that these tribunals were inherently unfair and merely institutions for “victor’s justice,” their process and procedures laid the groundwork for modern international criminal law.

The Nuremberg Tribunal established the principle that an international legal order would shield and protect all of humanity. Not even a Head of State would be exempt from criminal responsibility and punishment for aggression and crimes against humanity.

… Which prompted the US Congress to pass the American Service Members’ Protection Act, otherwise known as “The Hague Invasion Act” in 2002.  The law states that the President has the power to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”  This includes ordering a military invasion of the Hague.

Incidentally, though the US spearheaded the Nuremberg and Tokyo Tribunals, the United States is not a state party to the Rome Statute of the International Criminal Court, which founded the International Criminal Court. Neither is Israel. Or Russia… Or China… Canada is a party, by the way…

What does this mean for impunity across the world?  Your guess is as good as mine…