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Can Benjamin Netanyahu be brought to trial for war crimes?

—Syed Ahmed Ali

The persistent crimes against Palestinians, particularly in besieged Gaza, have created a dire situation attributed to Israeli forces. This prompts a crucial question: Can Benjamin Netanyahu be held accountable for war crimes in the International Criminal Court (ICC)? This query has now resonated globally, evoking calls for justice in the face of enduring offenses and sustained brutality.

The ICC assumes a central role in upholding international humanitarian law and countering impunity, making it a focal point in this discourse. As noted by Federica Mogherini, the former High Representative of the European Union for Foreign Affairs and Security Policy, “The ICC is a key institution for the enforcement of international humanitarian law and the fight against impunity for the perpetrators of the most serious crimes.”

The situation in Palestine, particularly the besieged Gaza Strip, is rapidly deteriorating due to what is described as Israeli barbarism. With over 11,000 casualties and 1.7 million displaced out of 2.3 million, the UN has joined the call to ameliorate conditions in Gaza. Reports of spikes in casualties, attacks on vital infrastructure, and severe fuel shortages paint a grim picture. The World Health Organization’s efforts to evacuate critically ill infants highlight the urgency, while the UN chief urges an immediate humanitarian ceasefire amid the Israel-Palestine crisis.

UN Secretary-General António Guterres condemned the war’s staggering and unacceptable civilian casualties, emphasizing the need to halt the violence. Volker Türk, UN High Commissioner for Human Rights (OHCHR), described the events in Gaza over the past 48 hours as horrendous.

Globally, voices are amplifying against the decades-long crimes and ongoing brutality, advocating for justice against the inhumanity and barbarism inflicted upon Gaza. There is a collective call to bring the perpetrators to the ICC for punishment, setting a historical precedent.

In pursuit of this, we engage in dialogue with Advocate Mr. Shoeb Inamdar Akola (High Court, Nagpur) and Mr. Mohammed Raqim, a final-year student of B.A, LLB(Hons) from University Law College, Bangalore University, seeking to understand the feasibility of bringing Benjamin Netanyahu to trial in the ICC for war crimes.

Advocate Shoeb Inamdar Akola (High Court, Nagpur)

In recent years, the question of whether political leaders can be held accountable for alleged war crimes on the international stage has become a subject of considerable debate. Benjamin Netanyahu, Prime Minister of Israel, has faced accusations and criticisms related to actions taken during his tenure. The prospect of bringing him to trial at the International Criminal Court (ICC) raises complex legal and geopolitical considerations.

The ICC is a court of last resort designed to prosecute individuals for the most serious crimes of international concern, such as genocide, crimes against humanity, and war crimes. To bring a case before the ICC, certain criteria must be met. The court generally acts when national authorities are unable or unwilling to prosecute the alleged crimes.

Accusations against Netanyahu have primarily revolved around Israeli military actions, particularly during conflicts in Gaza. Critics argue that these actions may constitute war crimes, including disproportionate use of force and civilian casualties.

However, pursuing a case against a sitting or former head of state involves intricate legal and diplomatic challenges. Israel is not a party to the Rome Statute, which established the ICC. As a result, the court’s jurisdiction over events in Israel is limited, unless the United Nations Security Council refers the matter to the ICC or Israel accepts the court’s jurisdiction, which seems unlikely.

Furthermore, the political nature of the Israeli-Palestinian conflict adds a layer of complexity. The issue is deeply entrenched in historical, religious, and geopolitical considerations, making any legal proceedings highly sensitive.

While some international human rights organizations and advocates push for accountability, the practicality of bringing Netanyahu to trial at the ICC remains uncertain. Political will, diplomatic maneuvering, and adherence to international law will play pivotal roles in determining whether such a case gains traction.

Finally, the question of bringing Benjamin Netanyahu to trial for war crimes at the International Criminal Court is fraught with challenges. While the ICC’s mandate is to address the gravest international crimes, the political realities surrounding the Israeli-Palestinian conflict complicate the prospect of achieving justice through this avenue. As the world watches, the pursuit of accountability for alleged war crimes must navigate the intricate intersection of law, politics, and diplomacy.

Mohammed Raqim Final year student of B.A, LLB(Hons)
University Law College, Bangalore University

The enactment of the Rome Statute, of 1998, resulted from decades of efforts by the international community to ensure that the perpetrators of grave crimes are punished and to end the impunity enjoyed by them. The International Criminal Court, established under the Rome Statute, has jurisdiction to try four types of crimes: (I) Genocide, (II) Crimes against humanity, (III) War crimes, and (IV) Crimes of aggression.

The crimes committed by the Occupation forces are well within the jurisdiction of the ICC, even though Israel is not a party to the Rome Statute. Article 12 categorically says that the ICC may exercise its jurisdiction at the instigation of the Prosecutor or a State Party, providing one of the following States is bound by the Statute: a) the State on whose territory the crime was committed; b) or c) the State of which the person accused of the crime is a national. Palestine became the 123rd member of the ICC in 2015. The ICC also ruled in 2021 that its territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment, and not the State.

As the head of State, Benjamin Netanyahu is responsible under Command or Superior Responsibility, which stipulates that a superior military or civilian leader can be held criminally responsible when his subordinates commit international crimes. The perpetrators are also in violation of the principle of distinction and proportionality. The principle of distinction is the requirement to distinguish between civilians and combatants, which Israel has utterly failed.

The principle of proportionality, in the words of ICJ, means “even a legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack.”

The terror unleashed by the IDF on civilian objects such as hospitals and schools and the killings of innocent civilians will purely fall within the jurisdiction of the ICC, and trial and subsequent punishment of the perpetrators are the only way to ensure that justice prevails.

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