For 18 years, I have been a criminal trial judge. I believe in the rule of law and independent and impartial justice in both domestic and international criminal law. The present US administration does not hold to those principles, and is now doing all it can to undermine them.
In the case of international criminal law, the International Criminal Court derives from the legacy of Nuremberg where, in 1945, an International Military Tribunal established by the allied forces, tried 22 leading German officials for war crimes.
Secretary of State Marco Rubio and President Donald Trump.Credit: Bloomberg
Controversial though it was, the International Military Tribunal demonstrated that justice beyond borders in the form of international criminal law could be real and effective in dealing with the most horrific war crimes, and perhaps be a means of preventing them thereafter. The Nuremberg experience testified to the truth of what many, including Dr Martin Luther King Jr. had said, that “there can be no peace without justice, and there can be no justice without peace”.
In 1998, the signing of the Rome Statute for the establishment of the ICC reaffirmed the purposes and principles of the United Nations Charter. It meant that all UN member states would refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN. These are uncontroversial and necessary international principles.
And so, pretty much without fear or favour, in 2002 the ICC went to work. As with all courts, an important foundation of the ICC was judicial independence and the application of the rule of law. Given the gravity of the court’s work, it had to be real and impartial justice – no matter who was accused of serious crimes. The judges needed to be able to conduct investigations and trials free from any form of governmental interference.
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Now, that is no longer guaranteed. Nor is the court’s future.
The Rome Statute states that “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions” is a war crime.
On November 21, 2024, the pre-trial chamber of the Court issued warrants for the arrest of Hamas commander Mohammed Deif (this warrant was cancelled in January following confirmation of his death), Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. The latter two face allegations of being responsible for the war crimes of starvation as a method of warfare, and of intentionally directing an attack against a civilian population. Charges also allege that from at least October 8, 2023 until at least May 20, 2024, Netanyahu and Gallant were responsible crimes against humanity of murder, persecution, and other inhumane acts. The process, if it is allowed to be completed, will tell the world whether those allegations are proven beyond reasonable doubt.
