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LONDON: When German authorities arrested Libyan war crimes suspect Khaled Mohamed Ali Al-Hishri at Berlin Brandenburg Airport, the operation was widely praised as a breakthrough for the International Criminal Court.

As a senior member of the Special Deterrence Forces militia, El-Hishri is accused of murdering, torturing, and raping detainees at Tripoli’s notorious Mitiga prison between 2015 and 2020.

His arrest in July not only brought hope of justice for victims of war crimes in Libya. It marked a rare win for the ICC, with one of its key member states cooperating in the arrest and handover of a suspect for trial at The Hague.

Just a few days earlier, major European powers had another opportunity to deliver a suspected war criminal to the ICC.

Yet this time, despite traveling to Hungary before jetting off through the airspaces of Greece, Italy, and France on his way to the US, not a finger was lifted in the pursuit of Israeli Prime Minister Benjamin Netanyahu.

The discrepancy in the approach to these two ICC arrest warrants cuts to the heart of a crisis threatening the legal institution designed to hold to account those behind some of the world’s most appalling atrocities.

Countries that signed up to the international treaty that created the ICC are increasingly failing to fulfill their legal obligations to it.

More and more, they are picking and choosing what their obligations are based on political winds, severely undermining its power to provide international justice.

“When member states fail to execute ICC arrest warrants, the damage to the court’s credibility and to international law is profound,” Mark Ellis, executive director of the International Bar Association, told Arab News.

“The ICC has no enforcement mechanisms of its own and relies entirely on state cooperation. Non-execution, particularly in high-profile cases, signals that political considerations can override binding legal obligations.”

The fading cooperation of member states at the ICC is one of several major, intertwined challenges facing the institution.

Last month, the Trump administration sparked outcry when it imposed a third round of sanctions on ICC officials, including two judges and two prosecutors.

The US, which is not a member of the ICC, said the action was because of the court’s attempts to prosecute Americans and Israelis.

It is all a far cry from the optimism surrounding the UN-organized conference in Italy in July 1998 that led to 60 nations ratifying the Rome Statute. That international treaty led to the establishment of the ICC four years later.

The idea for a permanent court to investigate genocide, crimes against humanity, and war crimes had been floated since the end of the Second World War.

In the 1990s, individual tribunals were set up to investigate atrocities committed during conflicts in Rwanda and the Balkans, but momentum gathered around a more efficient permanent court that would act as a stronger deterrent.

The court, based in The Hague in The Netherlands, now has 125 state parties, but crucially dozens remain outside. Along with the US, these include India, China, and Russia.

By its nature, the court has often been heavily criticized. Non-members argue that the ICC’s authority would challenge their sovereignty, while others claim the court is not powerful enough.

Perhaps the most longstanding criticism has been that the court disproportionately targets Africa, while failing to take action against figures from the West involved in conflicts in Iraq and Afghanistan.

Of the more than 60 arrest warrants issued by the court, the vast majority have been for people from the African continent. Only 22 of those warrants have been successfully executed.

The most prominent figures now on the ICC’s wanted list include Russian President Vladimir Putin, Sudan’s former president Omar Bashir, and, of course, Netanyahu.

Perhaps the biggest impairment for the court is that it has no power of enforcing its decisions. Instead, it depends upon member states to carry out the arrest of those it seeks to prosecute.

According to international law experts, ICC member states are increasingly failing to honor their obligations — something that has been starkly highlighted since Israel began military operations in Gaza in October 2023.

In November 2024, the court issued arrest warrants for Netanyahu and his former defense minister Yoav Gallant for the war crime of starvation and the crimes against humanity of murder, persecution, and “other inhumane acts.”

Despite this, the Israeli prime minister made a four day visit to Budapest in April, which included flights over other European member states.

Another Libyan wanted by the ICC also managed to evade the court when he was released by Italy in January, just days after his arrest, and flown back to his home country.

Ossama Anjiem, known as Ossama Al-Masri, is also accused of war crimes and crimes against humanity for his role running detention centers in Libya.

Rome’s court of appeals said there had been a procedural error in his arrest, which took place after he managed to attend a Juventus-AC Milan football match within days of the ICC warrant being issued.

His release sparked an angry response, with critics pointing out Italy’s reliance on the internationally recognized Libyan government to stem the flow of migrants across the Mediterranean to Italian ports.

Al-Masri’s alleged crimes were committed in the same Tripoli prison where many migrants have been detained and where Al-Hishri is accused of carrying out his crimes.

Al-Masri went free while Al-Hishri went to The Hague. And Netanyahu continues his globetrotting.

Luigi Daniele, associate professor in international law at Italy’s Molise University, who specializes in war crimes, said ICC member states are operating an “on/off” switch on the legal duties they agreed to when they became parties to the system of the court.

“It’s more than just double standards. It’s the destruction of any standard,” he told Arab News.

“These governments are acting as if all the standards are for rival powers and no standards at all applied to allied powers.

“All these states have assumed a solemn legal duty. Legal duty means it’s mandatory, it’s the duty of a national prosecutor under domestic penal code. It’s law, by all means and standards.”

Adil Haque, a law professor at Rutgers University in the US, said the enforcement of ICC arrest warrants “risks becoming a patchwork, in which some state parties will execute some warrants but not others.”

“The ICC itself is not applying double standards, but if its state parties apply double standards then the effect is the same,” he told Arab News.

The impunity being shown by Europe to Netanyahu is particularly disturbing for many observers, especially outside of the West and whose governments are not entwined in the US-Israeli alliance.

They see an unlevel playing field for international justice in which one of America’s main allies is being allowed to continue a military campaign that has killed more than 63,000 Palestinians and which this week leading scholars agreed constituted a genocide.

The reluctance of European powers to carry out their ICC obligations with regards to Netanyahu is in tandem with their lack of willingness to act against Israel over the war.

The EU has struggled to agree on any significant punitive measures, with deep divisions between those more supportive of Israel like Hungary and those taking a stronger stance like Spain and Ireland.

Particularly disturbing for some was an invitation by German Chancellor Friedrich Merz for Netanyahu to visit Germany.

“We will find ways and means for him to visit Germany and also to be able to leave again without being arrested,” Merz said shortly after being elected in February.

The ICC has stated that not even heads of governments enjoy immunity from arrest on behalf of the ICC.

“Germany does not contest the ICC’s legal position” Haque said. “Instead, Germany’s chancellor has suggested purely political reasons for not arresting Netanyahu, which is quite shocking to hear said out loud.”

Daniele believes the Gaza war is a fork in the road for the institution.

“The situation in Palestine set before the ICC can be either the beginning of a new chapter of its history or the nail in the coffin of its credibility,” he said.

The court has been under immense pressure from “a strong network of powers internationally” that support Israel, with threats being made against the office of the prosecutor of the ICC.

Despite this, the ICC went ahead and issued the arrest warrants against the Netanyahu government.

“This was a signal to all the non-US allies … that actually, the court wasn’t exactly a tool of NATO powers,” Daniele said. “It was a signal of independence, of an attempt to bring justice to victims, to all victims of all crimes, without fear or favor.”

However, if the court fails to issue arrest warrants for Israel’s far-right ministers Bezalel Smotrich and Itamar Ben-Gvir, who have been accused in some quarters of inciting genocide, Daniele said that would show the threats and reprisals may have done their job.

What followed was a barrage of US sanctions against court officials. In announcing the latest round, US Secretary of State Marco Rubio claimed the court is a “national security threat that has been an instrument for lawfare against the United States and our close ally Israel.”

The ICC hit back, describing the sanctions as a “flagrant attack against the independence of an impartial judicial institution” and an “affront to millions of innocent victims across the world.”

The sanctions mean the officials will be banned from entering the US and their US assets will be blocked.

It is a major challenge to the court but could also help boost support for the ICC from other countries. The EU could shield the court by invoking a “blocking statute” which prevents businesses from complying with US sanctions that reach overseas.

“US sanctions against the ICC are deeply troubling and represent an unacceptable attempt to intimidate and deter the court from fulfilling its legitimate mandate — pursuing justice for victims of the gravest international crimes,” Ellis said.

“It is hoped that states, international institutions, and individuals will be galvanized to strengthen their support for the ICC and to collectively resist the Trump administration’s efforts to undermine accountability for the most egregious international crimes.”

The court also needs to strengthen its position and the best way to do this, Ellis said, is to encourage more countries — particularly major powers — to sign up to the Rome Statute.

“Expanding membership enhances the ICC’s legitimacy and authority, and will make its judgments more universally recognized and enforceable,” he said.

He also recommended swifter and tougher disciplinary measures for countries that fail to uphold the ICC’s arrest warrants.
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