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Image: Tina Tiller
Image: Tina Tiller

PoliticsNovember 27, 2023

What is a war crime? Will Netanyahu be charged? Israel-Palestine terms, explained

Guest writer
Image: Tina Tiller
Image: Tina Tiller

The ICJ and ICC could lose their credibility if they fail to hold the perpetrators of war crimes and crimes against humanity to account. 

The pursuit of justice on the global stage relies significantly on the effectiveness of  international judicial institutions, with the International Court of Justice (ICJ) and the International Criminal Court (ICC) playing pivotal roles in addressing and prosecuting serious international crimes. In light of the heightened conflict between Israel and Hamas in Palestine, there has been a surge in references to “war crimes”, “crimes against humanity”, “genocide” and mentions of the ICJ and ICC. Below is a guide to what exactly these terms mean, and what these judicial institutions can do in response to allegations of gross violations of international law.

What exactly are war crimes, crimes against humanity, genocide and crimes of aggression? 

War crimes are grave breaches of international law in the context of armed conflict and times of war. It includes the killing or torture of civilians, the taking of hostages and intentionally directing attacks against hospitals and schools.  

Crimes against humanity are acts committed as part of a wide-spread attack  against any civilian population. It includes murder, rape, imprisonment, enslavement – particularly of women and children, torture, apartheid and deportation.  

Genocide is characterised by the specific intent to destroy in whole or in part, a national, ethnic, racial or religious group.  

Crimes of aggression is the use of armed force by a state against the sovereignty, integrity or independence of another state. 

Netherlands, The Hague, Vredespaleis, Peace Palace, seat of the UN International Court of Justice,
Peace Palace in The Hague, Netherlands, the seat of the UN International Court of Justice. (Photo: Walter Bibikow/Getty Images)

What is the International Court of Justice (ICJ)?  

The ICJ was established by the UN Charter in 1945 and is the principal judicial organ of the United Nations. It is a civil tribunal composed of 15 elected judges, with the primary function of settling legal disputes between countries, in accordance with  international law. It can only hear a dispute when requested to do so by one or more UN member states. Since states are sovereign and free to choose how to resolve their  disputes, the states involved in the dispute must consent to the Court’s consideration of  the dispute in question. The ICJ does not have jurisdiction to prosecute individuals accused of war crimes or crimes against humanity. As it is a civil court, not a criminal one, it does not have a prosecutor to initiate proceedings. Once a judgment is delivered by the Court, it is binding upon the parties concerned and cannot be appealed. While its effectiveness is dependent on the cooperation of states, the ICJ plays a crucial role in promoting peaceful dispute resolution and upholding the rule of law at an international level. 

A well-known ICJ case is the Nuclear Tests Case (New Zealand v. France) in May 1973, in which New Zealand took France to the ICJ in an attempt to ban France’s testing of nuclear weapons in the South Pacific. France considered the ICJ to lack jurisdiction over them and ignored the court’s interim ruling that they must cease nuclear testing. However, before the case was completed, France announced it had completed testing and had no intention of carrying out further tests. 

Another example is Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) in which Australia, with New Zealand intervening as a non-party, asked the ICJ to declare Japan in violation of the International Convention for the Regulation of Whaling. This was based on Australia’s allegation that Japanese scientific whaling in the Southern Ocean was in fact disguised commercial whaling. The ICJ ordered Japan to revoke any authorisations, permits or licenses to kill, take or treat whales in relation to JARPA II (the whaling programme), and refrain from granting any further permits. Japan said it would abide by the ICJ’s ruling but noted that it was deeply disappointed by the decision.

The NZ legal team for the 1973 ICJ case against France.
The NZ legal team for the 1973 ICJ case against France. (Photograph: Archives NZ)

What is the International Criminal Court (ICC)?  

The ICC was established by the Rome Statute in 1998. It is a criminal tribunal that prosecutes individuals responsible for the most serious crimes of concern to the international community. These include war crimes, crimes against humanity, genocide and crimes of aggression. The Rome Statute was a treaty adopted by the UN General Assembly in Rome in July 1998, and entered into force in July 2002 after being ratified by 60 countries.

There are currently 123 member states party to the Rome Statute. However, several countries have never signed the treaty including Israel, China, India and Iraq. Several other countries signed the treaty but did not  ratify it, including the United States, Russia and Egypt. The ICC is composed of 18  elected judges, each from a different member state. Judges are elected to nine-year terms. The ICC’s jurisdiction is complementary to national courts, meaning it steps in  when national courts are unable or unwilling to prosecute individuals for serious crimes. The ICC has faced challenges and criticism, including concerns about its  effectiveness, particularly as a result of some states not being subject to its jurisdiction as a result of not signing or ratifying the Rome Statute. It has also faced criticism that it lacks authority, making it inefficient and ineffective at prosecuting war criminals.  

For example, in the 2005 case of The Prosecutor v. Joseph Kony and Vincent Otti, the ICC issued arrest warrants for Joseph Kony, the leader of the Lord’s Resistance Army (LRA) in Uganda, and five senior LRA members. This was on the basis of allegations of murder, cruel treatment, enslavement, rape and attacks against the civilian population which amounted to crimes against humanity and war crimes. However, despite Uganda being a signatory to the Rome statute, the ICC’s efforts to apprehend Kony have faced challenges and he has remained in hiding and evaded arrest for nearly 20 years. In 2021, the ICC convicted an LRA commander of war crimes and crimes against humanity and sentenced him to 25 years in jail. In 2022, the ICC sought to revive the case against Kony. 

Despite this however, the ICC still remains a significant institution in the pursuit of international justice and the prevention of serious crimes in breach of international law.  

Turkish lawyers on their way to the International Criminal Court with three folders of evidence they say prove Israel's war crimes in Gaza.
Turkish lawyers on their way to the International Criminal Court with three folders of evidence they say prove Israel’s war crimes in Gaza. (Photo by Abdulhamid Hosbas/Anadolu via Getty Images)

The ICC in the context of Israel and Palestine  

The recent atrocities committed by Israel and Palestinian armed group Hamas have raised allegations that both sides are violating international law. The United Nations Commission of Inquiry has been collecting evidence of potential war crimes committed in Israel and Palestine since the attacks on 7 October 2023. The commission has said that there is evidence of war crimes committed by both sides as a result of Hamas gunning down civilians and taking hostages in Israel, and by Israel killing civilians in deadly airstrikes and placing Gaza under siege through cutting access to electricity, water and food and blocking aid from entering the Gaza Strip.  

What can the ICC do in response to these allegations?  

Israel is not a party to the Rome Statute, the treaty that established the ICC. This means that the ICC does not have jurisdiction over crimes committed on Israeli territory unless Israel accepts the court’s jurisdiction, which it has historically rejected. On the other hand, Palestine is a party to the Rome Statute and the ICC recognises Palestine as a member state. This grants the ICC authority over crimes committed in  the occupied territories of Gaza, the West Bank and East Jerusalem, meaning it can  prosecute international crimes that have been committed there. 

The ICC already has an ongoing investigation into allegations of war crimes and crimes against humanity committed in the occupied Palestinian territories since 2021. However, it would likely face enforcement challenges due to the lack of its own  enforcement mechanisms. This means even if the ICC were to issue arrest warrants on individuals accused of serious crimes, the enforcement of these warrants could prove challenging as it relies on cooperation from member states to arrest and surrender  individuals. In cases where states do not recognise the ICC’s jurisdiction, such as  Israel, securing cooperation becomes a significant obstacle. 

For example, in March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin for crimes related to Russia’s invasion of Ukraine. This was on the grounds of the forcible deportation of children and the unlawful transfer of children from occupied areas of Ukraine to the Russian Federation, which are considered to be war crimes. Although neither Ukraine or Russia are ICC member states (with Russia withdrawing from the Rome Statute in 2016), Ukraine accepted the court’s jurisdiction to investigate alleged war crimes committed on its territory. Although Russia does not recognise the court’s jurisdiction and rejected the ICC’s move as void, the warrant limited Putin’s ability to travel internationally and attend significant diplomatic events. This is because the arrest warrant obliged member states to arrest Putin if he were to travel to their country or extradite him to the ICC to face trial as a war criminal. However, this again relies on the cooperation of member states as they would need to be willing to arrest him. Due to Russia being one of the most powerful countries in the world, arresting its leader would have significant consequences for any country that attempted to do so.  

Consequently, if a similar situation were to arise where the ICC issues an arrest warrant for Israeli Prime Minister Benjamin Netanyahu for crimes committed in Gaza, it goes  without saying that Israel would reject the ICC’s move. However, just because Israel  does not recognise the ICC, it does not render the court ineffective. An arrest warrant would weaken Israel and Netanyahu’s global standing and send a clear message to the international community to hold Israel to account for its actions that allegedly amount to war crimes and crimes against humanity.  

Netanyahu and Putin at the Kremlin in 2020.
Netanyahu and Putin at the Kremlin in 2020. (Photo by Mikhail Svetlov/Getty Images)

In the case of Hamas, which has also allegedly violated international law and committed war crimes, holding the Palestinian militant group accountable for its actions would also prove challenging. The ICC does not have jurisdiction over crimes committed on Israeli territory, unless Israel accepts the court’s jurisdiction. Furthermore, Hamas is  a non-state actor, meaning it is not a member state of the UN, nor any treaties such as  the Rome Statute. Nevertheless, individual Hamas leaders and militants can still be charged with war crimes and tried at the ICC because Palestine has accepted the court’s jurisdiction.  

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Conclusions  

Much like Russia’s invasion of Ukraine, the prospect of prosecuting war crimes committed by Hamas and Israel in the current conflict seems unlikely. However, all parties who have grossly violated international law and indiscriminately targeted civilians must be held accountable for the crimes they have committed, so justice can be restored for the victims of these atrocities. By addressing these human rights violations, future crimes can be deterred, impunity can be abolished and international cooperation can be fostered. 

During the Ukraine war, the international community was quick to demand action by the ICC against Russia for its alleged crimes on Ukrainian territory. The ICC’s prosecutor was also quick to issue an arrest warrant for Putin. The mass atrocities occurring in Israel and Palestine serve as a test of the credibility of the ICC. If the court fails to hold accountable the perpetrators of war crimes and crimes against  humanity in Israel and Palestine, it has the potential to lose much of its credibility. International cooperation will also play a vital role in the future credibility of the ICC. Member states will need to work together and take a stand against grave violations of human  rights in order to “promote the rule of law and ensure that the gravest crimes do not  go unpunished.” This will ultimately strengthen the international community’s commitment to human rights and “foster a sense of shared responsibility in addressing  and preventing mass atrocities”.

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Keep going!
David Seymour, Christopher Luxon and Winston Peters arrive for the signing of the coalition agreement (Photo: Marty Melville/AFP via Getty Images)
David Seymour, Christopher Luxon and Winston Peters arrive for the signing of the coalition agreement (Photo: Marty Melville/AFP via Getty Images)

PoliticsNovember 24, 2023

The coalition deals leave a lot to be fought over in the next three years

Contributing writer
David Seymour, Christopher Luxon and Winston Peters arrive for the signing of the coalition agreement (Photo: Marty Melville/AFP via Getty Images)
David Seymour, Christopher Luxon and Winston Peters arrive for the signing of the coalition agreement (Photo: Marty Melville/AFP via Getty Images)

After some ‘interpretative cross-checking’ of the coalition agreements, constitutional law expert Andrew Geddis sees confusion in this government’s future.

The two documents that set the basis for our new Three-Way coalition government are a bit of a lawyer’s delight. National has agreed a whole bunch of stuff with Act. National has agreed a whole bunch of stuff with New Zealand First. Act and New Zealand First haven’t directly agreed anything with each other, but they have promised that they’ll each support what they understand the other to have agreed with National. Two written documents that each contain extensive detail across a wide range of issues and so seek to capture the intentions of three different groups of people. What is also known as “a disputant’s goldmine”.

Nevertheless, what then have the three parties apparently cooked up between themselves? Putting aside all the boiler-plate “we’re pulling together for a brighter future” material, working out the actual content requires quite a bit of interpretative cross-checking. Basically, the starting point is all those things set out in (deep breath) National’s eight-point commitment card, fiscal plan, tax plan, 100-day plan, and 100-point economic plan. These matters are now deemed to be coalition government policy – except where either of the agreement documents diverge from them, that is.

Meaning that you have to go through all National’s various policy commitments as set out at election time, cross check them with both the National-Act agreement and the National-New Zealand First agreement, and where there’s no express difference, then they still stand. But if there is some divergence, then the position as set out in (either) the National-Act or National-New Zealand First agreement stands. On top of which, both Act and New Zealand First have some of their own policies expressly accepted by National in each of the separate agreements (which are then, in turn, accepted by the other party in our new gouvernement à trois arrangement). 

Which is to say, it’s all a bit complicated and is going to take a while for all the details to get fully digested. Even then, some confusion is going to reign. For example, the National-New Zealand First agreement unequivocally states that the new government will “ensure, as a matter of urgency in establishment and completion, a full scale, wide ranging, independent inquiry conducted publicly with local and international experts, into how the Covid pandemic was handled in New Zealand … .” However, the National-Act agreement only commits to “broaden[ing] the terms of reference of the Royal Commission into the Covid-19 response, subject to public consultation”. These are not the same thing at all, yet apparently both are now official government policy that all three parties are committed to.

There’s a bit of similar fudge when it comes to one of the obvious hot-button areas for the coalition partners – what to do about te Tiriti and “strengthening democracy” (to use the language adopted in both of the agreements). Here, it seems clear that the three partners were more in agreement about what they didn’t want than what they did. No more “co-governance in the delivery of public services”. No more delivering public services based on “race” instead of “need”, including getting as granular as requiring a review of how people get selected to enter medical school. No more guaranteed Māori representation in local government, unless the non-Māori residents of the area vote to allow it. 

But how the new government plans to unpick te Tiriti’s role in our wider constitutional arrangements is less clear. Act’s once-upon-a-time bottom line of a referendum on what “the principles of the Treaty” ought to mean is watered down into a promise that legislation allowing such a vote will get sent to a select committee (with the clear implication being that it then goes no further). New Zealand First wins a promise of “a comprehensive review of all legislation … that includes ‘The Principles of the Treaty of Waitangi’ and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references.” That sounds grand and overarching, but how will it sit with Supreme Court dicta stating that the way Treaty principle provisions are worded in legislation doesn’t really matter … and that you probably don’t even need them anyway, given how much te Tiriti is a part of our constitutional fabric?

All of which leaves a lot to be fought over (hopefully ideologically and politically, rather than literally) in the next three years. We’re going to have to work out what the relationship is between “race” and “need” is in a society where pervasive structural disadvantage creates unequal outcomes. We’re going to have to question the extent to which temporary parliamentary majorities can alter constitutional presumptions that have been developed over some three decades prior. That is, if there really even is a parliamentary majority in favour of some particular change. 

Oh – one last thing. The parties have all committed to legislation setting up a referendum on moving to a four-year parliamentary term. I’m putting my money down now that the outcome of this referendum will depend on how the public reacts to the coalition seeking to deliver on this combined agreement over the next three years. If they can make it work, it’ll probably pass. But if it all falls apart, then it won’t. Let’s see where we end up. 

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Gabi Lardies
— Staff writer

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